Goldberg v Randel

District Court of NSW|2008-12-05|Before: Begg J, Bray CJ, Jacobs J

These proceedings were listed for argument concerning discovery and interrogatories. The interrogatories argument was added on the day after the verified answers were served unchanged on 18 August.

There were problems with the plaintiff's answers to interrogatories and I ordered the plaintiff to serve fresh answers by 29 August, listing the matter for argument on 5 September together with the discovery argument.

The plaintiff submits that the appropriate order in such circumstances is for the costs to be costs in the cause. I accept this submission. In my view the costs of the 8 August listing are a part of this application, and the same order should be made for costs concerning the costs of that day.

I made orders for further answers to certain interrogatories after hearing argument. The parties made a number of concessions (e.g. the plaintiff withdrew the claim for special damages) and the matter was allocated a hearing date. Costs were reserved.

The defendant now seeks a costs order in his favour.

The reason for the defendant's partial success was that the defendant agreed to provide further particulars of truth which meant that interrogatories previously objected to on the basis of relevance were no longer the subject of objection. The defendant failed in relation to a number of other objections to interrogatories. It was a case of mixed success for both parties.

In circumstances such as these it is appropriate that costs be costs in the cause.

On 5 September I stood the matter over to 3 October for further hearing if required, the reason being that I allocated a hearing date (29 June 2009) for the whole of the proceedings.

When the matter came before me for directions on 3 October the plaintiff had only just provided answers to interrogatories the day before. The defendant complained that there were many reminder letters sent to the plaintiff over this period not only about the further answers to interrogatories but concerning other issues. The defendant made an application for costs. As I could not remember which of the parties had failed to comply with which prior orders I directed the parties to provide written submissions in 7 days and stood the matter over to 24 October, intending to give judgment on the submissions.

Both parties failed to comply and the matter required a further timetable on 24 October (for which date neither party seeks a costs order). The defendant's outline of costs is dated 24 October and the plaintiff's outline (which should have been provided by 14 November) was not provided until 17 November.

Conclusion concerning costs in multiple interlocutory proceedings

The hearing date allocated for the argument on 24 October is 5 December, and I am providing my judgment today based on the submissions I received from the parties.

There is some default and delay on both sides. Courts should not encourage parties in defamation litigation to stockpile costs orders in circumstances where the real issues of the case may turn out, at the hearing, to be entirely different. For this reason, whether or not costs should follow the event is a question which, in defamation litigation in particular, needs to be seen in the context of the proceedings. The precepts of ss 56-62 Uniform Civil Procedure Act 2005 (NSW) should also be borne in mind. Parties whose conduct falls outside the "just, quick and cheap resolution of the real issues in the proceedings" may not be entitled to orders for costs if delay or non-compliance is a feature of their conduct of the case.

The plaintiff has had greater success in this application for costs, in that I have made the orders that the plaintiff sought, namely costs be costs in the cause. However, when making costs orders, the fact that a defendant has been brought into litigation (as opposed to commencing proceedings, and being able to look forward to the award of damages) is a factor to which some weight should be given, especially where there has been non-compliance with timetables by the plaintiff on a number of occasions.

It is important that the parties concentrate on the hearing of these proceedings rather than take a combative stance about the costs of proceedings. Accordingly I am of the view that not only should the costs of the hearing on 3 October be costs in the cause, but so should the costs of this application. It will be at the hearing that it will become clear "who, as a matter of substance and reality, has won" (Gatley on Libel and Slander, 10th ed., [35.12], citing Sir Thomas Bingham MR in Roache, supra).

Costs of 20 June, 1 August, 8 August, 5 September and 3 October 2008 to be costs in the cause.
Costs of this application to be costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Uniform Civil Procedure Act 2005(NSW)

CITATION: Goldberg v Randel (No 2) [2008] NSWDC 283

Andrews v Herald & Weekly Times (Supreme Court of NSW, Begg J, 11 December 1978, unreported) Cretazzo v Lombardi [1975] 13 SASR 1 Goldberg v Randal [2008] NSWDC 45 CASES CITED: Goldschmidt v Constable & Co [1937] 4 All ER 293 Ritter v Godfrey [1920] 2 KB 47 Roache v News Group Newspapers [1998] EMLR 161 Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 (CA) Zierenberg v Labouchere [1893] 2 QB 183

The defendant submits that his success in interlocutory applications means that costs should follow the event. This principle has particular application in defamation actions, because it discourages plaintiffs from bringing (and defendants from defending) defamation actions they are likely to lose: Roache v News Group Newspapers [1998] EMLR 161.

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