The Court made no order as to costs where a preliminary discovery application was resolved by voluntary production of documents without a contested hearing. Nixon J held that Boral's voluntary production of three documents in response to broadly framed categories was a compromise by both parties rather than capitulation by the plaintiffs, and that Boral's refusal to produce documents prior to the filing of the application and supporting evidence was not unreasonable, given that a respondent to preliminary discovery is entitled to remain passive until the applicant makes out its case. The Court also declined to order costs of voluntary production where no court order compelled production and the costs would likely be de minimis.
The full text is available to signed-in members.