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Category: Costs

Parties: Wafaie Gayed (Plaintiff)
Archbishop Angaelos of London (First Defendant)
Father Alexander Aziz (Second Defendant)
Adeeb Mikhail Andrawos (also known as Bishop Daniel of Sydney) (Third Defendant)
Father Joshua Tadros (Fourth Defendant)
Father Youhanna Bestawros (Fifth Defendant)
Father Sharobim Sharobim (Sixth Defendant)
Father Morris Morris (Seventh Defendant)
Father Angelos Fouad (Eighth Defendant)

Representation: Counsel:
No appearance (Plaintiff)
L Barnett SC / B Gallifuoco (First Defendant)
No appearance (Second to Eighth Defendants)
Solicitors:
No appearance (Plaintiff)
William Roberts Lawyers (First Defendant)

File Number(s): 2023/259442

Publication restriction: Nil.

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: In this matter, the plaintiff’s claim for damages for defamation against eight defendants, of whom the present applicant is the first, was dismissed by Rothman J on 23 December 2025. His Honour made the following orders:

2. Dismiss the plaintiff’s motion.

3. Refuse leave to file a further amended statement of claim as notified or otherwise.

4. Pursuant to the terms of Uniform Procedure Rules 2005 (NSW) (“UCPR”) r 12.7, dismiss the proceedings for want of due dispatch.

5. The plaintiff to pay the defendants’ costs of and incidental to the proceedings.

6. It will be necessary for me to return to his Honour’s judgment which was published as Gayed v Bishop Angaelos of London [2025] NSWSC 1600. The first defendant’s application today is for a special costs order under s 40 of the Defamation Act 2005 (NSW) (“the Act”) for indemnity costs. Alternatively, the applicant seeks an order for indemnity costs under the court’s general costs powers, and in accordance with the principles generally associated with the case of Calderbank v Calderbank [1975] 3 All ER 333 (“Calderbank”).

7. Although the notice of motion listed before me today was filed on 1 June 2026, I am satisfied from Exhibit A, tendered before me today, that on 6 January 2026 the first defendant notified the plaintiff at a time when the plaintiff was legally represented of his intention to move the Court for these orders. The solicitor then acting for the plaintiff, a Mr Bloom, acknowledged receipt of the email of the solicitor for the applicant which had clearly indicated that the application for a special order for costs would be made, and with Mr Bloom’s consent, notification was given to Rothman J’s chambers on 12 January 2026, as demonstrated by Exhibit B.

8. Those considerations are of significance because when the matter was called for hearing before me today, there was no appearance by or on behalf of the plaintiff. That development was not unexpected, having regard to the matters set out in the second affidavit of Robert Ishak of 23 June 2026. From the matters deposed to by Mr Ishak in that affidavit, and from exhibit C, a screenshot of a text message sent to the plaintiff yesterday, I am well‑satisfied that this application, and the evidence in support of it, have come to the plaintiff’s attention, and that he has chosen not to appear.

9. Given that Mr Bloom was still acting for the plaintiff as recently as 6 January 2026, Mr Ishak had laboured under the apprehension that Mr Bloom continued to act. In the meantime, he had not received any notice of ceasing to act, or any other communication indicating that Mr Bloom no longer acted for the plaintiff. I am not suggesting that in any way Mr Bloom has failed in his obligations. The proceedings were finally disposed of by the orders made by Rothman J on 23 December 2025, and there was no reason for Mr Bloom to file any notice in the registry to be served on the other parties when his retainer came to an end. In any event, from Mr Ishak’s affidavit I am satisfied that Mr Bloom reliably provided the plaintiff’s correct contact details to solicitors working in Mr Ishak’s office under his supervision.

10. After the notice of motion and supporting documentation had been forwarded to Mr Bloom by way of purported service and on 17 June 2026, Mr Bloom wrote to Mr Ishak suggesting that he contact the plaintiff direct. In response, Mr Schifter, a solicitor employed as an associate in Mr Ishak’s office, emailed Mr Bloom at the request of Mr Ishak, to which Mr Bloom responded confirming that a copy of the notice of motion, the affidavit of Mr Ishak in support, including the exhibit, and the notice of listing from the Court that the matter would be heard today, had been forwarded to the plaintiff.

11. Further steps were taken by Mr Ishak to make sure these matters had been brought to the attention of the plaintiff. A matter which I regarded as being of significance, was that Mr Schifter, in the presence of Mr Ishak, with the phone on loudspeaker, dialled the phone number for the plaintiff that Mr Bloom had provided. When the phone was answered, Mr Ishak said, “Good morning, Mr Gayed”. The person who answered the phone replied, “I think you have the wrong number”. Mr Ishak asked, “Who am I speaking to?” and the person apparently hung up. A photograph of the details of the call, as displayed on Mr Ishak’s telephone, has been exhibited as part of exhibit RI3, the exhibit to Mr Ishak’s second affidavit which deals with service.

12. In the context of all the material put before me, I am satisfied that the person who answered the phone was Mr Gayed, the plaintiff, and I am also satisfied that he had received, as Mr Bloom had indicated, the necessary documents to enable him to appear today. After the abortive telephone call, confirmation was sought and received from Mr Bloom, that the number telephoned was the number he had in his records for Mr Gayed’s mobile telephone.

13. Following that, a text message was sent to that number advising of the matter, and on 22 June 2026, the submissions prepared by senior and junior counsel were emailed to the email address provided by Mr Bloom, and on the same day, the necessary documentation was despatched to the plaintiff, that is to say, an additional copy of it, by express post. Finally, I reiterate that exhibit C is a text message sent yesterday giving full details of the listing for today, including the time, the Court number and identifying me as the judge who would hear the matter.

14. I accept all of that evidence I have summarised, and I am satisfied, as I have said, that the necessary documents have been served in accordance with the provisions of r 10.14 of the UCPR, and on the basis of the evidence of Mr Ishak, I am satisfied, in accordance with the provisions of r 10.14(2), that the necessary notice of motion and affidavit in support for this application may be taken to have been served upon the plaintiff, on or before the date and time of Mr Bloom’s email confirming that the plaintiff was provided with a copy of those documents, in accordance with the evidence of Mr Ishak set out in para 13 of his affidavit of 23 June 2026.

15. I turn then to the merits of the motion. The principal basis of the application, as I have said, is the provisions of s 40 of the Act. Ms Barnett of senior counsel, who appeared with Ms Gallifuoco of counsel for the first defendant, relied principally s 40(2)(b), which is in the following terms:

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise) —

...

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

12. Before detailing the settlement offer that was made, I think it appropriate to set out in this judgment, as I said I would, aspects of the reasons of Rothman J for making the orders his Honour pronounced on 23 December 2025 (set out at [1] above). I now reproduce [40]-[44] of his Honour’s judgment:

“[40] In this case, the plaintiff has had three years of opportunity and multiple judgments of the Court requiring him to re-plead his case and to put his case in proper order, both as to the identity of the defendant or defendants and as to the material facts giving rise to the liability of the defendants. The plaintiff has failed time and time again to utilise the abundance of opportunity to his best advantage, or to any advantage.

[41] On the current material, the Court does not consider that another opportunity would now be utilised, differently from the other opportunities. Moreover, the Court considers that the plaintiff has failed to deal with the proceedings with due despatch. As currently pleaded the proceedings disclose no reasonable cause of action against any of the defendants named and the proceedings are an abuse of process.

[42] The Court takes into account the very high bar necessary to make an order dismissing proceedings. A party, ordinarily, ought to be entitled to their day in Court and ought not to be deprived of the opportunity to agitate a cause of action, even when novel.

[43] However, nothing in the current pleadings, or in any evidence before the Court on this interlocutory application, discloses that there is any cause of action that could possibly arise against any of the named defendants. Of course, to some extent at least, whether a good cause of action is able to be maintained may depend upon facts and, when that occurs, dismissal should not occur.

[44] Nevertheless, despite the leave of the Court granted on a number of occasions (and the urging of the Court), and the dispensation granted by the Court in relation to the naming of defendants, the plaintiff has continued to fail to prosecute the proceedings in an appropriate manner. There is a significant time delay between the filing of the original statement of claim and the commencement of these proceedings and today. But the Court’s discretion, in this matter, depends not only on the passage of time. It depends on the passage of time and the failure, manifestly, of the plaintiff to regularise proceedings in a manner which discloses a good cause of action. For those reasons, the Court will refuse leave to file a further statement of claim and will dismiss the proceedings summarily.”

13. On 22 July 2025 (see affidavit of Robert Ishak 1 June 2026, exhibit RI2 p 97), Mr Ishak wrote to Mr Bloom under the style “without prejudice ‑ save as to costs”, and conveyed an offer in these terms:

“Our client instructs us to put an offer to your client as plaintiff, on the following terms to settle the entirety of the proceedings in relation only to our client, the first defendant:

(a) The plaintiff’s claim against the first defendant is dismissed;

(b) There be no order as to costs between the plaintiff and the first defendant; and

(c) These terms be enshrined by way of deed signed by the plaintiff and the first defendant.”

14. The offer was expressed as remaining open until 4.00pm on 25 July 2025. The balance of the letter set out the reasons why the offer was a reasonable one in language which was ultimately reflected in the passage from Rothman J’s decision, which I have set out above (at [12]). Reference was also made to the principles discussed in Calderbank, and Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311, in support of the stated intention to apply for a special order for costs were the offer rejected and the plaintiff failed to better it in the result (as has now occurred).

15. The letter of offer did not refer expressly to an order for indemnity costs, which the usual practice would suggest is prudent. But s 40(2) of the Act, in my judgment, does the work that an express statement of an intent to apply for indemnity costs otherwise performs.

16. Mr Bloom wrote to the defendant’s solicitors on 25 July 2025 stating: “I am instructed by my client to reject your client’s Calderbank letter of offer”. And for reasons which are not clear to me, that statement of rejection was repeated in an email from Mr Bloom to the first defendant’s solicitors of 25 September 2025.

17. From the outcome encapsulated by Rothman J’s orders, acceptance of the offer conveyed by the first defendant’s solicitors to the plaintiff through his solicitors would have been substantially more favourable to the plaintiff . In their written submissions, Ms Barnett and Ms Gallifuoco referred to Hutley v Cosco (No 2) [2021] NSWCA 335, and in particular Tavakoli v Imisides (No 4) [2019] NSWSC 717. In the former case, the Court of Appeal (Basten, Macfarlane and White JJA) said (at [11]0:

“… There are two aspects in which s 40(2) may vary from the principles governing Calderbank offers. First, the expression of an obligation to make an order, albeit contingent upon the possibility that the interests of justice may require otherwise, suggests that an order should be made unless the unsuccessful plaintiff can persuade the court to a different conclusion. Secondly, the obligation to award indemnity costs only arises if the proceedings are “unsuccessfully brought by a plaintiff”. The effect of the Calderbank principle is somewhat wider, as it applies where the plaintiff fails entirely or obtains a successful outcome, though one less favourable than that proposed in the offer. It is not clear whether the statutory provision should be interpreted to have a similar effect. Little seems to turn on these differences of language and the Court was invited to deal with the question on the same basis as either a Calderbank offer or a claim under s 40(2)(b).”

18. The question their Honours identified about the full scope of s 40(2) does not really arise for consideration in this case. This is not a case where a plaintiff was successful but achieved a less attractive result than that offered. This is a case where, from the orders of Rothman J, the plaintiff was entirely unsuccessful in the proceedings, and the question of interpretation does not arise.

19. The question is whether the rejection of the offer in terms of s 40(2)(b) was “unreasonable”. In my judgment, having regard to the reasons given by Rothman J which I have set out above (at [12]), there is no doubt that the plaintiff’s refusal of the offer was unreasonable.

20. I will not repeat what Rothman J said, but it is clear that even on the face of the pleadings, the plaintiff’s case against the first defendant was propounded without a proper basis being manifest. And notwithstanding many opportunities afforded, and multiple judgments of the Court requiring, the plaintiff to replead his case, as Rothman J said at [40], this he failed to do. I should say that, as is evident from a reading of Rothman J’s judgment, the original case in defamation was based upon the publication of defamatory matter in an anonymous email. While the case was pending, a person who appeared to be the author of that anonymous email was identified by the defendants which information was passed on to the plaintiff. And despite having the opportunity to join that person as and additional defendant or to substitute him as a defendant for one or other or all of the eight defendants, no step in that regard was taken.

21. I have no doubt in my mind, that the refusal of the offer was unreasonable, and in the circumstances given the obvious intent of s 40 of the Act, I propose to vary the order made by Rothman J on 23 December 2025 to order that the plaintiff is to pay the first defendant’s costs of and incidental to the proceedings on the indemnity basis.

22. The plaintiff also seeks a specified gross sum order under the provisions of s 98(4)(c) of the Civil Procedure Act 2005 (NSW). Ms Barnett took me to the frequently cited decisions of Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 (Einstein J) (“Idoport*”) and Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [813]-[820] (Beazley JA, Giles and Whealy JJA agreeing) (“Hamod”*). It is unnecessary for me to set out the passages from those judgments relied upon in detail as they are well known.

23. The first defendant’s claim for costs in this matter are set out fully in the affidavit of Mr Ishak of 1 June 2026 from para 26 and following. I am satisfied that Mr Ishak is a very experienced solicitor in commercial litigation and is well placed to provide evidence about the costs incurred on behalf of the first defendant. I am also satisfied that he has provided, not only his own opinion but other evidence which demonstrates the reasonableness of the costs which he assesses, including the Costs Assessment Rules Committee’s Guidelines for Costs Payable Between Parties Under Court Orders of 24 October 2023 (some time ago now) (at p 71 to 74 of exhibit RI2). From Mr Ishak’s evidence and from the guidelines, I am well satisfied that the rates ascribed to each of the various persons in Mr Ishak’s evidence who performed work on the file on behalf of the first defendant, are reasonable and appropriate to the level of qualification and experience of each of them. Those rates are set out in the table at the foot of para 32 of the affidavit.

24. Moreover, at para 33, Mr Ishak set out the rates on a daily and hourly basis of Ms Lyndelle Barnett SC and Ms Bianca Gallifuoco of counsel, and I am satisfied, likewise, that the rates payable to counsel are entirely appropriate to their respective rank and experience and accord with, if I can put it this way, the market rates payable to counsel of equal expertise and experience. Indeed, in some respects, they may be said to be, relatively, on the modest side. I am satisfied that the total amounts payable to counsel are appropriate having regard to the time for which the proceedings had been on foot and the stage which they had reached at the time they were dismissed.

25. Moreover, the disbursements set out at para 35 of the affidavit, seem to be appropriate, again, to the circumstances of the case. At the foot of p 36, a full breakdown, as it were, of the periodic charges by reference to invoices issued to the first defendant or his insurer, is fully set out, and the total amount, including disbursements, is $186,958.16. I am of the view, given that defamation litigation is time‑intensive for legal practitioners involving frequent interlocutory applications and, it might be said, somewhat arcane procedures, that the total amount charged is by no means excessive, and seems reasonable, again, in relation to proceedings which had been on foot for three years at the time they were dismissed.

26. As Mr Ishak acknowledges in his affidavit, and as the principles arising out of the Idoport and Hamod decisions make clear, the Court’s conventional approach to gross sum costs orders, is to reduce the gross amount claimed to the extent it is assessed as reasonable and necessary by a specified percentage, to take into account a variety of factors, including the consideration that the Court is not conducting a formal assessment or taxation and a degree of restraint should be exercised. In the course of an assessment before a costs assessor, it is inevitable that there would be entries in the draft bill that could be criticised and reductions will be made. In some cases, there would be a substantial markdown.

27. Moreover, the costs of assessment, which in a complex case are sometimes not insignificant, need also to be borne in mind. A gross lump sum order by the Court avoids that expense, and there is what might be referred to as ‘an efficiency dividend’ in as much as the costs, the subject of the order, are crystalised now rather than at the end of what can sometimes be a lengthy process. It is also the case that given the plaintiff’s apparent avoidance of the present application and his failure to take the opportunities to amend that he was afforded while the case was pending, he is perhaps likely not to participate in any costs assessment which can have the effect of causing delay while opportunities are afforded him to do so.

28. Although there is no hard and fast rule about the level of discount, and indeed, the cases referred to be Einstein J in Idoport (at [13]) suggest a variety of rates of discount have been applied, I am of the view, as submitted by Ms Barnett that a discount in the range of say, 15-30% on indemnity costs is not unreasonable. I am satisfied that the case is a proper one for making a gross sum costs order and that I have sufficient materials to confidently make that assessment.

29. I am also satisfied that the appropriate rate of discount, having regard to the factors that I have referred to and those set out in the cases referred to by Einstein J (at [13]) is 20%. Accordingly, the total amount for costs and disbursements that I will allow is 80% of $186,958.16.

30. After some discussion with Mr Schifter, solicitor, who is appearing to take judgment, I am informed that the gross sum costs order is sought net of goods and services tax, and that accordingly the total figure, adopting the table at the foot of para 36 of Mr Ishak’s affidavit, is reduced to $170,115. I have checked my numbers with Mr Schifter, who has been involved in the conduct of the case under the supervision of Mr Ishak. After allowing the 20% discount to which I have referred in my judgment, the net figure is $136,092.

31. The orders I will make are as follows:

32. Under r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), the notice of motion and supporting document is taken to have been served on or about 18 June 2026.

33. Vary the orders pronounced by Rothman J on 23 December 2025 by deleting order 4 and substituting the following “the Plaintiff shall pay:

(a) the first defendant’s costs of the proceedings on the indemnity basis pursuant to s 40(2)(b) of the Defamation Act 2005 (NSW); and (b) the second to eighth defendants’ costs of and incidental to the proceedings”.

3. Under s 98(4)(c) of the Civil Procedure Act 2005 order that the costs payable by the plaintiff to the first defendant are in the specified gross sum of $136,092.
4. Order the plaintiff to pay the first defendant’s costs of the motion filed on 1 June 2026 on the ordinary basis.

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Amendments

11 August 2026

Typographical corrections.

11 August 2026

.