INVERNESS MEDICAL INNOVATIONS, INC AND ANOR V MDS DIAGNOSTICS LIMITED AND ANOR HC AK CIV 2007-404-748 [2009] NZHC 124 (13 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                          CIV
2007-404-748



              BETWEEN                      INVERNESS MEDICAL
                                           INNOVATIONS,
INC
                                           First Plaintiff

              AND                          INVERNESS MEDICAL
   
                                       SWITZERLAND GMBH
                                           Second Plaintiff

           
  AND                          MDS DIAGNOSTICS LIMITED
                                           First Defendant

             
AND                          PRAKASH APPANNA
                                           Second Defendant


Judgment:     13 February
2009 at 11.30 A.M.


                           JUDGMENT OF POTTER J
                     as to costs on interlocutory applications
                     for discovery/inspection/confidentiality



                    In accordance with r 11.5 High Court Rules

                  I direct the Registrar to endorse this judgment
              with a delivery time of 11.30 a.m. on 13 February
2009.




Solicitors:   Tony Oxnevad, P.O. Box 722, Queenstown
              Lowndes Jordan, P.O. Box 5966, Auckland 1141

Copy to:
     C Edwards, P.O. Box 4338, Auckland
              J Katz QC, P.O. Box 1900, Shortland Street, Auckland 1140


INVERNESS MEDICAL
INNOVATIONS, INC AND ANOR V MDS DIAGNOSTICS LIMITED AND ANOR
HC AK CIV 2007-404-748 13 February 2009

[1]     I am called upon to
determine costs in relation to the matters the subject of
my judgment of 21 December 2007.


[2]     I have received and considered
memoranda from the plaintiffs dated 31 July
2008 and 23 December 2008 and from the defendants dated 3 November 2008.


[3]     I
note that the plaintiffs' memorandum of 31 July 2008 was filed in
accordance with my minute of 18 July 2008 which related to costs
on the joinder
application as well as applications for discovery.          Therefore it appropriately
addressed costs issues in relation
to both applications. In a subsequent minute dated
19 September 2008, to which counsel for the defendants refers at paragraph 5 of
his
memorandum dated 3 November 2008, I made further timetable orders when advised
by counsel that they had agreed costs on the joinder
application but had been unable
to agree costs in relation to the judgment of 21 December 2007. The memorandum
of counsel for the
plaintiffs dated 23 December 2008 appropriately addresses only
the single costs issue.


[4]     In the memorandum dated 23 December
2008 counsel for the plaintiffs has
revised the schedule of disbursements, which appears to be appropriate.


[5]     As to the claim
for costs, I do not accept it is appropriate to allocate category
C to some of the items, even if that approach were permitted by
the rules, which I
agree with Mr Katz QC, it is not (see McGechan HR14.3.01, particularly at
paragraph 2). Category 2, Band B are
appropriate. However, I accept the plaintiffs'
submission that there is a case for increased costs on these applications, to which
I
shall refer shortly.


[6]     The plaintiffs' costs claims in relation to case management conferences and
case management memoranda
are disallowed except in respect of the memorandum
for the mention on 4 May 2007, dated 3 May 2007 and the appearance at that
mention
on 4 May 2007. I accept that while the minute of Harrison J simply refers
to the memoranda of counsel, the content of this mention
related to the matters
which eventually became the subject of my judgment of 21 December 2007.

However, the appearance at the case
management conference as recorded in my
minute of 20 April 2007 was in relation to the proceeding generally, as was the joint
consent
memorandum of 19 April 2007 and the memoranda of 14 August 2007 and
19 September 2007. The memoranda of 2 August 2007 and 9 August
2007 arose
directly from the 1 August 2007 hearing and provided me with information and/or
documentation in order that I might proceed to a judgment on the various
applications.
I do not consider they justify a separate costs' allowance.


[7]    Thus costs on a 2B basis are:


        Plaintiffs' application
                                   .6

        Plaintiffs' notice    of   opposition   to   defendants'
                        
                                          .6
        ap p licatio n


        Preparation for hearing                           
        1 .5


        Appearance at hearings on 6 July and 1 August 2007         1.5


        Memorandum for mention on 4 May 2007
dated 3 May           .4
        2007


        Appearance at mention on 4 May 2007                        .3


                
                                                  4.9 days


4.9 days at $1600 per day equals $7840


[8]    I consider this is an
appropriate case for some increase in costs to be allowed
pursuant to r 14.6(1)(a) High Court Rules. As Mr Elliott states in his
memorandum,
the defendants' opposition to the plaintiffs' application for further and better
discovery was doomed from the outset,
the defendants having declined to discover
any more than a mere two documents and being resistant to a constructive or co-
operative
approach to the issue of discovery generally. The defendants' obdurate
stance gave rise to prolonged and unnecessary processes, argument
and hearings.

[9]    My judgment was significantly in favour of the plaintiffs. The plaintiffs had
to tidy up Part 3 of their list
of documents, but this was done promptly and willingly
once alerted to the matter by the defendants. I do not accept there was any
confusion
that "served to confound the overall issue" as referred to at paragraph 12 of the
memorandum of Mr Katz. Overall, on both
the plaintiffs' and the defendants'
applications, the plaintiffs were successful, the defendants were not, and I am
satisfied that
the defendants contributed unnecessarily to the time and cost of these
interlocutory proceedings.


[10]   For these reasons I would
allow an increase of approximately 15% in the
costs calculated as above, which I round to $9,000.


[11]   In summary, costs on these
interlocutory applications are awarded to the
plaintiffs in the sum of $9,000 with disbursements totalling $1,301.89 as set out in
the schedule to the plaintiffs' memorandum dated 23 December 2008.