Lakaev v Denny (No 2)

[2010] NSWSC 420

CITATION:	Lakaev v Denny (No 2) [2010] NSWSC 420 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Written submissions
JUDGMENT DATE :	11 May 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	(i) The Court notes the undertaking to the Court by the defendants in the following terms: "The defendants undertake to retain the image of the defendants' hard drive obtained by Robert Atkins pursuant to the orders of Adams J of 8 April 2009 for the purpose of his Report dated 1 October 2009 until the conclusion of Supreme Court of New South Wales proceedings 55205/2010 by way of settlement or judgment or otherwise until further order of the Court."(ii) The defendants shall pay the plaintiff’s costs of and incidental to the motion filed 12 November 2009, as agreed or assessed, including the costs of hearing on 4 February 2010 and 11 February 2010, but excluding the costs of and incidental to the written submissions dated 12 April 2010 and/or 16 April 2010, which costs will be costs in the cause.
CATCHWORDS:	COSTS – costs follow the even – no issue of principle – order made
CATEGORY:	Consequential orders
CASES CITED:	Lakaev v Denny [2010] NSWSC 136
PARTIES:	Natasha Lakaev (Plaintiff) Annette Denny (First Defendant) Warren Denny (Second Defendant)
FILE NUMBER(S):	SC 20062/2009
COUNSEL:	M S White (Plaintiff) M Richardson (Defendants)
SOLICITORS:	Bruce Macdonald Lawyers (Plaintiff) Flower and Hart Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

11 MAY 2010

20062/2009 Natasha Lakaev v Annette Denny & Ors (No 2)

JUDGMENT

1 HIS HONOUR: Pursuant to leave granted by the Court on 11 February 2010, the plaintiff applies for costs arising from those proceedings and, pursuant to Order 1 of 11 February 2010 a variation of orders made on 8 April 2009. It is necessary to deal, briefly, with some background.

2 The plaintiff alleges that she was defamed on the internet and was, initially, unaware of the publishers of the defamatory material. The plaintiff approached the Court and Adams J, on 8 April 2009, issued orders the effect of which was to grant preliminary discovery of certain material, including hard drives of computers, in the possession, conduct and control of the defendants.

3 A dispute as between the plaintiff and defendants arose as to the extent of the discovery sought and whether the Report of an expert, Mr Robert Atkins, of 1 October 2009, related to material that went beyond the terms of the orders of Adams J.

4 By agreement between the parties, the legal representatives of the plaintiff had access to the documents in contention. The matter was heard over two days on 4 February 2010 and 11 February 2010 and the Court, ex tempore, issued orders and reserved its reasons. On 5 March 2010 the reasons were published and are reported as Lakaev v Denny [2010] NSWSC 136 (“the earlier judgment”), in conjunction with which this judgment should be read.

5 The two issues that are before the Court, consequential on that judgment, are: the disposition of the hard drive currently held by the expert; and, costs.

Disposition of the hard drive

6 Pursuant to the orders of Adams J, the expert had possession of the hard drive and extracted from that hard drive soft and hard copies of relevant material. According to Order 10 issued by Adams J, thereafter the hard drive was to be returned to the defendants. It is, after all, their property. No doubt there are uses for the hard drive beyond the issues that are associated with this alleged defamation.

7 The second defendant is a practising solicitor and the material before the Court recounts that the hard drive is used for business and other personal purposes and is needed.

8 The plaintiff seeks an order from the Court that Order 10, issued by Adams J, be vacated and that the aforesaid expert preserve the image of the hard drive to be available to the Court on its direction at any future time.

9 The relevant material in the hard drive has already been copied. If, by accident or design, the hard drive were to be destroyed, those copies would be admissible in evidence. They may be admissible in evidence, without the destruction of the hard drive. The foregoing does not suggest that the defendants would destroy the hard drive. It is dealing with a hypothetical fear.

10 In response to the proposal for the order (which response is consistent with an alternative proposed by the plaintiff) the defendants proffer an undertaking to the Court in the following terms:

“The defendants undertake to retain the image of the defendants’ hard drive obtained by Robert Atkins pursuant to the orders of Adams J of 8 April 2009 for the purpose of his Report dated 1 October 2009 until the conclusion of Supreme Court of New South Wales proceedings 55205/2010 by way of settlement or judgment or otherwise until further order of the Court.”

11 It seems to me that such an undertaking overcomes any possible prejudice, if there be any. The Court proposes to accept the undertaking given to it and therefore not to vary the orders of Adams J as proposed by the plaintiff.

Costs

12 In issuing the orders on 8 April 2009, Adams J dealt with the costs of the motion for preliminary discovery. It is inappropriate that the Court revisit those orders. No good reason has been advanced for the setting aside of any such orders.

13 The proceedings, thereafter, were brought before the Court by notice of motion of the plaintiff, seeking the determination of the issues as to the notice of discovery issued purportedly in accordance with the orders of Adams J. The Court issued orders on 11 February 2010, the effect of which was to dismiss the defendants’ objections to discovery and confirm discovery in accordance with the notice. It is appropriate that those proceedings be the subject of an order for costs.

14 Agitation between the parties preliminary thereto will, no doubt, be the subject of ultimate orders in relation to the disposal of the substantive proceedings. The costs order should not run to the argument on the variation of Order 10, nor to the costs argument itself. Each of those will be costs in the cause.

15 The Court makes the following orders:

(i) The Court notes the undertaking to the Court by the defendants in the following terms:


“The defendants undertake to retain the image of the defendants’ hard drive obtained by Robert Atkins pursuant to the orders of Adams J of 8 April 2009 for the purpose of his Report dated 1 October 2009 until the conclusion of Supreme Court of New South Wales proceedings 55205/2010 by way of settlement or judgment or otherwise until further order of the Court.”

(ii) The defendants shall pay the plaintiff’s costs of and incidental to the motion filed 12 November 2009, as agreed or assessed, including the costs of hearing on 4 February 2010 and 11 February 2010, but excluding the costs of and incidental to the written submissions dated 12 April 2010 and/or 16 April 2010, which costs will be costs in the cause.

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20/05/2010 - Amended under the slip rule. - Paragraph(s) 13, 15(ii)