Should Order 4 in the Notice of Motion be made?
11 The costs of proceedings before the court are in the court's discretion: Civil Procedure Act 2005, s 98. The general principle as to costs is governed by UCPR, Pt 42, r 42.1, namely, that costs should follow the event, "unless it appears to the court that some other order should be made as to the whole or any part of the costs".
12 The respondent relies upon a line of authority that where a party, although not totally successful in the proceedings, is successful on either a discrete cause of action or on a particular issue, then the court may order the costs of that cause of action or issue (a discrete matter) notwithstanding that the party has not succeeded in the proceedings as a whole: see Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748; Craftsman Homes Australia Pty Ltd v Channel Nine Pty Ltd (2006) NSWSC 1297; Lewis v Nortex Pty Ltd (In liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480; LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (No 2) [2002] NSWSC 72.
13 The respondent contends that these authorities stand for the proposition that a party who has substantial success on a discrete matter "should be entitled to its costs of that cause of action or issue". There is no principle to that effect and the respondent has stated the effect of the authorities too highly. The fact that there has been substantial success on a discrete matter is a factor that the Court may, in the exercise of its discretion, take into account in determining the costs order that should be made. The Court may, in such a case, make an order that the otherwise unsuccessful party have its costs of the discrete matter notwithstanding its lack of success in the proceedings as whole.
14 The respondent advances four factors as supporting the favourable exercise of the Court's discretion in this regard. First, it relies upon its success in respect of the second publication. Secondly, it contends the costs of trial that were incurred in respect of the second publication will be "irrelevant to the conduct of any second trial". As the Court understands this submission, it is that the matters in issue on the second publication will play no part in the remitted hearing. This is disputed by the appellant. He points out that the respondent will rely upon matters in the second publication in support of its case on the contextual truth of the defamatory imputation conveyed by the first publication and also in respect of damages.
15 The respondent, as part of its submissions in support of the second factor, also contended that as the trial judge has now retired, this Court is in a better position to determine the appropriate costs order than the judge assigned to the rehearing will be. It submitted that if this Court does not make an order now in respect of the costs of the trial relating to the second publication, substantial further costs will be incurred in reviewing the conduct of the first trial.
16 Next, the respondent contended that there is likely to be a substantial lapse of time before the proceedings finally conclude and before the respondent can recover its costs, unless the Court makes Order 4 as sought in the Notice of Motion. The respondent submits that there is an unfairness in this, because the appellant is in fact now free to tax and recover his costs of the appeal.
17 Finally, the respondent submitted that the costs of the trial have already been submitted for assessment by both parties and with considerable time and money expended by each party on the assessment which, the Court was informed, was nearing completion. It was submitted that it was more efficient and in the interests of justice if that process be completed, rather than it having to be restarted at some time in the future.
18 The appellant opposed the making of Order 4. He submitted that the respondent brought upon itself the incurring of time and apparently, considerable expense, in preparing the bill of costs for assessment in circumstances where there was an appeal pending. The respondent replied, asserting that it was entitled to have its costs assessed and that the appellant could have sought a stay on the assessment of those costs. Rather than doing so, the appellant engaged in the process by filing a Notice of Objection and the assessment proceeded in the normal fashion. The respondent submitted that the assessment could now continue by removing from the Bill of Costs those items referrable to the defamatory imputation arising from the first publication.
19 The appellant also contended that the proportion of time spent at trial in respect of the second publication was about 10 per cent of the hearing time, so that any order in the respondent's favour would not be substantial as a proportion of the entire costs. This assessment was disputed by the respondent.
20 The appellant submitted that it is unfair for the respondent to seek the payment of the costs ordered by the trial judge in respect of the abandoned imputations to be paid forthwith, in circumstances where the respondent repleaded those imputations as contextual imputations in respect of the defamatory imputation conveyed by the first publication. The appellant also opposes an order that the costs the respondent seeks in Order 4 be paid forthwith.
21 The respondent's answer to this is brief, namely, that it is unjust for it to be forced to wait to recover its costs of the second matter complained of, upon which it has been entirely successful, notwithstanding that it has pleaded back the same imputations as contextual imputations. The respondent points out that if it wishes to establish those factual matters again, it must start from scratch. It also submits that as there was no appeal from the order for the payment of the costs of the abandoned imputations, those costs should now be paid. It contends that the order for costs made in respect of the abandoned imputations, is a final, not an interlocutory, order.
22 The Court has a wide discretion as to costs. In cases such as the present, there is a range of possible costs orders that might be made. Such order could be: that costs follow the event, on the basis that 'the event' is the result of the proceedings as a whole; that costs follows the event on the basis 'the event' is the cause of action based on each imputation, so that the respondent will have its costs of the defamatory imputation conveyed by the second imputation, and the party that succeeds at the remitted hearing will have the costs of the defamatory imputation conveyed by the first publication; that the respondent have its costs of any discrete matter upon which it succeeded; that the respondent be ordered to pay a proportion only of the appellant's costs; that the appellant pay the respondent's costs should the respondent succeed on the remitted hearing, although in that case some other order may be made in the exercise of the court's discretion; or that there be no order for costs.
23 In circumstances where the result of the entire proceedings is unknown because the proceedings have not been concluded, and where there may be factors relating to the conduct of the remitted proceedings which may impact upon the appropriate order for costs as to the whole of the proceedings, this Court is not in a position to determine the order for costs which ought to be made. Accordingly, the variation of the Court's costs order, as sought by Order 4 in the Notice of Motion, should be refused.