Dank v Cronulla-Sutherland District Rugby League Football Club

Judgment - ex tempore 1HER HONOUR: On 8 August 2013, I gave judgment determining objections taken by the first and sixth defendants to the form of the pleading of the plaintiff's claim: Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101. Yesterday, I heard argument as to the costs of that application. This judgment determines the application for costs. 2The plaintiff was mainly unsuccessful in the application, my judgment having ruled that the pleadings as against the first and sixth defendants were liable to be struck out as to each of the publications pleaded against them: at [14] and [25]. 3The only issue on which the plaintiff was successful was an application for leave to administer interrogatories. I acceded to a submission that, before being required to replead the publications as against the first and sixth defendants, the plaintiff should have an opportunity to interrogate the sixth defendant as to an oral publication relied upon in paragraph 3 of the original statement of claim. 4The first and sixth defendants, accordingly, seek their costs of the application. However, in addition, they seek what is sometimes referred to as a special order for costs in that it represents a departure from the default position under the rules. Specifically, they seek payment of their costs assessable on an indemnity basis and payable forthwith. 5Ms Wass of senior counsel, who appears for the first and sixth defendants, provided a chronology of the steps taken or, rather, not taken by the plaintiff in the proceedings to date. In addition to those matters, a significant feature of the costs application was the fact that, notwithstanding the orders made by me allowing the plaintiff to interrogate the sixth defendant as to the oral publication, no such interrogatory was served. The plaintiff has since filed and served an amended statement of claim, notwithstanding his previous contention that he was unable to plead the oral publication without the assistance of the interrogatory. 6As I have already indicated, each aspect of the order sought by the first and sixth defendants represents a departure from the default position under the rules. Rule 42.2 provides that costs payable to a person under an order of the Court or the rules are to be assessed on the ordinary basis unless the Court otherwise orders. Rule 42.7 provides that the costs of any interlocutory application are to be paid and otherwise dealt with in the same way as general costs and do not become payable until the conclusion of the proceedings, unless the Court otherwise orders. 7The principles as to the circumstances in which the Court can appropriately exercise its discretion to order otherwise were not in dispute in the application yesterday. Those principles are conveniently summarised in the judgment of Black J in Australian Property Custodian Holdings (No 2) [2012] NSWSC 881. Without rehearsing the principles there comprehensively summarised by his Honour, I would note in particular the following. 8First, it is well settled that the circumstances must be such as to warrant the Court in departing from the usual course. Whilst the categories in which the discretion may be exercised to do so are not closed, many of the authorities in this area provide by way of analysis examples of other instances in which it has been thought fit to exercise the discretion to make a special costs order. Relevantly, in the context of the present case, the examples given by Black J in Australian Property Custodian Holdings include evidence of particular misconduct that causes loss of time to the Court and to the parties and the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions. 9In the present case, as early as 10 May 2013, the first defendant drew the plaintiff's attention to the deficiencies in the manner in which the element of publication had been pleaded. The relevant objections are set out in a letter dated 10 May 2013 from the solicitor for the first and sixth defendants, Mr Alder, to the solicitor for the plaintiff. Mr Alder's characterisation of the deficiencies in the pleading of the oral publication was unexceptionable and ought, in my view, to have been acceded to at an early point by the plaintiff. 10The plaintiff did not take the course, however, of amending in response to those objections. The defendants were forced, through a series of directions hearings and in correspondence, to persist in their objections and to remind the plaintiff of the need to comply with various timetables fixed. Specifically I note that, as early as 31 May 2013, in response to the plaintiff's foreshadowing that he would seek interrogatories for the exact words spoken by the sixth defendant, the first defendant sought a draft of those interrogatories. None were provided until over two months later, on 1 August 2013. 11Extraordinarily, having been successful in obtaining leave to issue what I considered to be the appropriate form of interrogatory allowable in such circumstances, the plaintiff chose not to avail himself of that opportunity and has repleaded the oral publication in substantially the same form as in the part of the original pleading struck out on 8 August 2013. 12The conduct of the plaintiff, in my view, has been unreasonable and has unnecessarily prolonged the resolution of the issues in dispute in the proceedings. I am satisfied in all the circumstances that it is appropriate to depart from the default position under r 42.2 by allowing the first and sixth defendants their costs on an indemnity basis. 13I do not, however, propose to accede to the application for an order that the costs be payable forthwith. On that aspect of the application, Ms Wass relied upon the decision of Black J to which I have already referred, together with the decision of Beech-Jones J in Ritson v Gay & Lesbian Community Publishing Limited [2012] NSWSC 586 and the decision of Barrett J in Fiduciary v Morningstar [2002] NSWSC 432. 14Before turning to those authorities, I would note as the starting position for consideration of this aspect of the application that the rules plainly contemplate that, in the ordinary course, even if a party is successful in an interlocutory application, he will not be entitled to have those costs paid until the conclusion of the proceedings. The reasons for such a position being the default position are obvious. The final outcome of the proceedings may be contrary to the fortune of the interlocutory application in question. If costs were invariably assessable and payable as each separate issue in the proceedings was determined, that could readily become a tool to stymie causes properly brought before the Court. I do not mean to suggest that that is any part of the motivation of the defendants in making the present application. It is rather a consideration of global application in the interests of justice. 15The authorities as to when it is appropriate to order costs to be payable before the conclusion of proceedings are summarised in the authorities relied upon by Ms Wass to which I have referred. Of particular relevance in the present case is the consideration that it may be appropriate to order costs to be paid before the conclusion of proceedings where the costs relate to a self-contained and detached or detachable part of the proceedings: see Priestley JA in Horrobin v ANZ Banking Group (Court of Appeal, 6 June 1997, unreported). 16Whilst I would readily and gratefully adopt the analysis of the relevant principles provided by Black J in Australian Property Custodian Holdings I would, with great respect to his Honour, not share his Honour's view that the application in that case satisfied that description. It was an application to have part of the pleadings struck out. That order was made with leave to the plaintiff to replead as against the relevant parties. For my part, I would think that there ought to be something more than simply success on a challenge to the form of pleadings to constitute a "detached and detachable" aspect of the proceedings. 17Examples of cases where it may be appropriate to make such an order include the example cited by Barrett J in Fiduciary v Morningstar at [11] from the decision of Hamilton J in Bagley v Pinebelt. The costs order under consideration in that case was an order against a barrister who had purported to represent the plaintiff at a time when he did not, in fact, have a retainer to do so. The discreteness of that kind of costs order may readily be recognised. 18In the present case, frankly, I would regard the defendants' success as being very much within the class of the ordinary kind of success or failure on interlocutory objections to the form of pleadings of the kind frequently taken in this list. I do not think the application has any exceptional aspect to it on that account. 19There were other aspects of the matter relied upon by Ms Wass which, it may be acknowledged, have some resonance with the kind of circumstances in which orders have been made for departure from the usual rule under r 42.7. However, in all the circumstances, I am not persuaded that this is an appropriate case in which to depart from the usual rule except, as I have indicated, to the extent that I think the first and sixth defendants are entitled to have their costs assessed on an indemnity basis. 20In the absence of Mr Rasmussen, I will have to hear the parties as to the form of orders.