Hooper v Phipps (No 4)

Legislation Cited: Civil Procedure Regulation 2017 (NSW), s 10
Defamation Act 1974 (NSW), s 48A
Defamation Act 2005 (NSW), ss 26, 40, 42
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Uniform Civil Procedure Act 2005 (NSW), s 56

Cases Cited: A.C.N. 627087030 Pty Ltd v Poche [2025] NSWCA 252
Ainsworth v James [2005] NSWSC 338
Australian Securities and Investments Commission v Diploma Group Limited (No 3) [2017] FCA 891
Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Bibby v Viva Energy Australia Pty Ltd (No. 2) [2025] NSWDC 407
Calderbank v Calderbank [1976] Fam 93 [1976] 3 All ER 333
Daniel R Granillo v State of Hawaii (Supreme Court of the State of Hawaii, SCWC-22-0000740, 15 July 2026)
Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591
Eppinga v Kalil [2021] NSWDC 549
Gill v Eatts [1999] ATR 81-529
Gill v Walton (1991) 25 NSWLR 190
Grovit v Doctor (1997) 1 WLR 640
Hall v Aldridge [No 2] [2026] WASC 3
Hayson v The Age Company (No 2) [2020] FCA 361
Hayson v The Age Company (No 3) [2020] FCA 1163
Hennessy v Lynch (No. 4) [2008] NSWDC 15
Herron v Harpercollins [2018] FCA 1495
Herron v McGregor (1986) 6 NSWLR 246
Hooper v Phipps (No 3) [2025] NSWDC 370
Hooper v Phipps [2020] NSWDC 134
Hooper v Phipps [2025] NSWCA 267
Hoser v Harrison (No 3) [2026] FedCFamC2G 224
Hoser v Harrison (No 4) [2026] FedCFamC2G 1006
Hoser v Hartcher [1999] NSWSC 1060
Hoser v Hartcher [1999] NSWSC 527
Hoser v The Queen [2003] VSCA 194
Maisel v Financial Times Ltd [1915] 3 KB 336 at 339-40
McGrane v BTQ Channel 7 [2011] QSC 290
Muriniti v Kalil [2022] NSWCA 109
O’Shanassy v Turland [2025] NSWDC 23
Packer v Meagher [1984] 3 NSWLR 486
Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14
Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352
Piggott v Van Der Veen [2025] NSWDC 391
R v Hoser and Kotabi Pty Ltd [2001] VSC 443
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Roberts-Smith v Fairfax Media Publications Pty Ltd (2025) 310 FCR 170; [2025] FCAFC 67
Saigal v Goel [2026] NSWCA 45
Sporting Shooters Association of Australia Pty Ltd (NSW Inc) v McGuire [2014] NSWSC 1370
Vacik Distributors Pty Limited v Australian Broadcasting Corporation [1999] NSWSC 1176
Vacik Distributors Pty Ltd v Australian Broadcasting Corporation (No 8) [2000] NSWSC 732
Walter v Buckeridge (No 4) [2011] WASC 313
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118

Texts Cited: David K Rolph, Rolph on Defamation (2nd ed, 2024, Thomson Reuters)

Category: Costs

Parties: John Hooper (plaintiff)
Julia Phipps (First defendant)
Willoughby City Council (Second defendant)

Representation: Counsel:
Mr T Senior (defendants)
Solicitors:
Mr A Teidt (plaintiff)
RGSLAW (defendants)

File Number(s): 2019/00096207

Publication restriction: Nil.

Judgment

Background

The Parties’ costs applications

The issues for determination

The evidence before the court

The matters the subject of complaint

Costs orders following a discontinuance

Does the Plaintiff’s medical evidence defeat s 40?

The Parties’ submissions on the medical evidence

Conclusions concerning the asserted medical reason for discontinuance

The offers made by the Parties

Chronology of offers made by the Defendants

First offer

Second Offer

Third Offer

Fourth Offer

Fifth Offer

Chronology of offers made by the Plaintiff to settle the matter

First Offer

Second Offer

Third Offer

How s 40 operates

Did the Plaintiff bring a hopeless case?

Abuse of process in defamation proceedings

Application of these principles to these proceedings

Abuse of process and a “hopeless case”

Section 10 of the Civil Procedure Regulation 2017 (NSW)

Concluding remarks and Orders

Judgment

Background

1. Mr Hooper (P****laintiff) was a councillor of the Willoughby Council (Council), the Second Defendant in this matter. As is set out in Hooper v Phipps [2020] NSWDC 134 at [9]-[15], the Plaintiff unsuccessfully sought to intervene in Supreme Court proceedings brought by the Council and was ordered to pay costs. These events were reported in the local newspaper, which relied on information provided by the Council’s media officer (F****irst D****efendant) about the findings of a Council-ordered inquiry into the Plaintiff’s conduct. The Plaintiff then sued the media officer and the Council for defamation and filed a requisition for trial before a jury.

2. As is set out in Hooper v Phipps (No 3) [2025] NSWDC 370 and Hooper v Phipps [2025] NSWCA 267, three jury trials had to be vacated, all of them for health reasons. The evidence was completed in the third trial up to the final addresses by his counsel when the Plaintiff collapsed in Court with cardiac problems. The Defendants brought an application for me to complete the hearing sitting without a jury, a course to which I acceded, in a decision affirmed by the Court of Appeal.

3. The Hearing was then set down to continue before myself, sitting without a jury, on 6 March 2026. This trial did not proceed because, on the morning of 6 March 2026, the Plaintiff sought leave to discontinue, offering to pay costs on the usual basis. The Defendants foreshadowed that they would seek costs of the whole of the proceedings on an indemnity basis. This costs argument was stood over to 23 March 2026.

4. There were delays due to representation problems. The plaintiff was dissatisfied with his legal representation and for a time acted for himself. In the course of the costs hearing, Mr Tiedt, the solicitor coming into the matter for the Plaintiff, acknowledged difficulties in obtaining documents and the transcript. I took steps to obtain the transcript and indicated that I would give a great deal of flexibility to timetables and submissions, asking the Parties to let me have any further submissions by 24 June 2026. That time has now expired.

The Parties’ costs applications

5. The first costs issue is whether the Defendants are entitled to costs under s 40 of the Defamation Act 2005 (NSW) (Act), a provision based on s 48A of the repealed Defamation Act 1974 (NSW) [1] and the interrelation between s 40 and the common law principles relevant to the award of indemnity costs. No argument was put that s 40 cannot apply to a discontinuance in the same way as to a final trial. [2]

6. Mr Senior further submits that if the Defendants’ offers do not satisfy s 40, the Plaintiff’s claim was always hopeless or an abuse of process, and that if he had succeeded, any damages awarded would have been nominal. This requires consideration of the Defendants’ reliance on a technical argument being able to defeat what the Parties called the “Kermode controversy” in construing the s 26 defence. [3]

7. The Plaintiff accepts that he should pay costs for the proceedings but submits that no order for indemnity costs should be made. He relies on medical evidence to assert that his inability to continue these proceedings is the medical problem which led to the first and third jury trials having to be aborted. The Plaintiff submits that, but for this health issue, he not only would have been able to complete the trial but would have been successful in receiving a substantial amount of compensation, given the limitations of s 26 of the Act, and that the uncertainty of success of the “Kermode controversy” argument operates in his favour.

8. The Defendants in response acknowledge that the results of one of the two disciplinary proceedings provided to the journalist in the matters complained of contained an inaccuracy but submit that they would have succeeded on the s 26 defence. Alternatively, any damages that were awarded to the Plaintiff would have been so trifling as to warrant a departure from the usual costs rules for a successful party. [4]

The issues for determination

9. The issues may be summarised as follows:

(a) Whether the Plaintiff has established that he must abandon these proceedings for medical reasons and, if so, whether s 40 would trump such an explanation. (b) Whether, if the medical evidence is accepted or not, the offers made by the Defendants are sufficient for the purposes of s 40, and the degree of weight to be accorded to the Plaintiff’s own offers. (c) Whether the Defendants on common law principles can establish, if their offers are insufficient to satisfy s 40, that the Plaintiff’s claim is an abuse of process or otherwise so hopeless or disproportionate to the damages claimed as to warrant indemnity costs.

The evidence before the court

10. The Defendants rely upon the offers made under s 40(2)(b) of the Act, which are attached to an affidavit of Mr J B Riley sworn on 20 March 2026.

11. The Plaintiff did not provide any documents or submissions prior to the Hearing on 23 March 2026 but tendered medical reports that had not been previously served, as well as providing copies of the Plaintiff’s offers.

12. Both Parties provided a written outline of submissions.

The matters the subject of complaint

13. As set out above, the first matter complained of is an email sent by the First Defendant, on 28 March 2018, in response to a query from a journalist employed by the North Shore Times, who was writing an article about the Council’s censure of the Plaintiff.

14. The second matter complained of is the repetition of the contents of this email by the North Shore Times on 11 April 2018, under the heading “Talus stance led to my censure, claims Hooper”. [5] The imputations pleaded are, in summary, that the Plaintiff was censured for serious misconduct.

Costs orders following a discontinuance

15. As observed in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (Lai Quin), [6] discontinuance by a plaintiff does not offer the same costs certainties as judgment or dismissal. However, the usual Lai Qin submissions have not been made by either party. This is because the Plaintiff has conceded that he is prepared to pay the costs on the ordinary basis; he opposes only the additional burden of indemnity costs. This is not only an appropriate concession by the plaintiff but of relevance to the entitlement to indemnity costs. [7] Discussion of Lai Qin factors where there has been a discontinuance of defamation proceedings without this concession [8] is therefore unnecessary.

16. Although the Defendants’ principal claim for costs is based on s 40, they also point to the discontinuance as evidence of this being a hopeless case on common law principles and thus amenable to indemnity costs. Where there has been unsatisfactory conduct of proceedings, such as flouting case management rules, applications for indemnity costs on a discontinuance are determined in much the same way as for other actions where such flouting has occurred. [9] Where the parties have diligently conducted the litigation prior to discontinuance, an order for indemnity costs is generally only made where there is a flavour of abuse of process or other wrongdoing warranting the departure from the usual costs rule. [10]

17. The first issue for determination is Mr Tiedt’s submission that, either in place of, or determination of, the Parties’ entitlements under s 40, his client deserves special consideration because he was obliged to discontinue for health reasons.

Does the Plaintiff’s medical evidence defeat s 40?

18. The Plaintiff first relies upon a very recent report of Dr Robert Khoo dated 12 January 2026:

“This certificate is issued at the request of the patient. It is based on my clinical assessments, review of available medical records, and the patient’s self-reported history. I have also had regard to an independent report dated 9 September 2023 by Dr Anne Grapsas, Clinical & Forensic Psychologist.

Medical History

Mr Hooper has a history of systemic hypertension (on treatment since 2020), dyslipidaemia, and mild coronary artery disease identified on cardiac CT imaging performed in April 2020.

In August 2022, he was investigated for exertional breathlessness and diagnosed with chronic thromboembolic pulmonary hypertension (CTEPH). He was commenced on medical therapy including macitentan 10 mg daily, tadalafil 20 mg daily, and apixaban 5 mg twice daily. He has also been treated with amplodipine for systemic hypertension.

Between November 2022 and February 2023, Mr Hooper underwent six balloon pulmonary angioplasty procedures for management of chronic thromboembolic pulmonary disease.

On 2 May 2023, he underwent right atrial flutter ablation.

On 4 September 2023, Mr Hooper experienced a suspected episode of atrial tachycardia or arial fibrillation, associated with symptoms suggestive of hypertension. He was subsequently commenced on anti-arrhythmic therapy including digoxin 62.5 micrograms daily and flecainide 25 mg twice daily.

A 24-hour Holter monitor performed on 27 September 2023 demonstrated sinus rhythm, with a minimum heart rate of 46 beats per minute, a maximum heart rate of 123 beat per minute, and an average heart rate of 64 beats per minute. There was a low burden of supraventricular and ventricular ectopy and no evidence of sustained or clinically significant arrhythmia.

On 6 November 2023, Mr Hooper completed a six-minute walk test, achieving 106% of the predicted distance for his age, sex, height and weight.

In August 2025, Mr Hooper was reviewed by his cardiologist in relation to recurrent episodes of paroxysmal atrial tachycardia, and antihypertensive therapy was recommenced.

Psychological History (Independent Report)

Mr Hooper has been under the care of Dr Anne Grapsas, Clinical & Forensic Psychologist, since December 2018. In her report dated 9 September 2023, Dr Grapsas documents that Mr Hooper has experienced prolonged psychological distress related to past and ongoing legal and organisational matters, and she provides a diagnosis of chronic Post-Traumatic Stress Disorder.

Dr Grapsas notes that Mr Hoopr’s psychological condition has become entrenched and has adversely affected multiple aspects of his life, including his physical health. She expresses concern regarding the impact of exposure to further stressful situations on his cardiovascular condition and states that she cannot reassure the court that similar stressors would not precipitate further health episodes.

I have not independently assessed Mr Hooper’s psychological condition and rely on Dr Grapsas’ report for the above summary.

Recent Events (Patient-Reported)

Mr Hooper reports that he has been involved in prolonged legal proceedings over several years, which he describes as a significant and ongoing source of psychological stress.

He reports that during legal proceedings in August 2025 he experienced an episode of paroxysmal atrial tachycardia requiring hospitalisation. He further reports additional episodes of paroxysmal atrial tachycardia in December 2025 and January 2026.

Medical Opinion

Mr Hooper has established cardiovascular disease, including thromboembolic pulmonary hypertension and recurrent atrial tachyarrhythmias. It is well recognised that significant psychological stress can precipitate or exacerbate cardiac arrythmias and contribute to cardiovascular instability, particularly in individuals with underlying cardiac disease.

Having regard to:

Mr Hooper’s documented cardiac conditions and history of arrhythmia,

The occurrence of arrhythmic episodes in the context of stress,

And the independent psychological opinion describing chronic PTSD and heightened vulnerability to stress,

It is my medical opinion that exposure to ongoing acute litigation-relation stress at this time is likely to increase Mr Hooper’s risk of further clinically significant cardiac events.

Certification

From a medical perspective, Mr Hooper is currently not fit to continue with litigation.

This opinion reflects his current medical fitness, considering his age and established cardiovascular disease. This certificate does not constitute comment on legal procedural, or professional matters.”

19. The Plaintiff next relies upon a report of Ms Anne Grapsas, a clinical and forensic psychologist, dated 9 September 2003, which concludes:

“…In my professional opinion Mr. Hooper suffers from chronic Post Traumatic Stress Disorder and the symptoms have become entrenched in his behaviour. The consequences of this have impacted adversely on every aspect of his life especially his physical health. I am aware of his recent health crisis whilst giving evidence in court and I am most concerned regarding future incidents regarding his heart condition. I cannot reassure the court the Mr. Hooper, if placed under similar stressful situations, would not suffer further episodes.”

The Parties’ submissions on the medical evidence

20. Mr Senior submits:

(a) Mr Hooper’s medical reports were not served prior to the hearing on 23 March 2026 and were thus non-compliant with requirements for service. Although the tender was not opposed, their value is undermined; (b) Neither of the reports contains a reference to the Code of Conduct, which reduces their reliability; [11] (c) Neither medical report appears to appreciate that all that is left to do is for the Plaintiff’s counsel to provide final submissions. As the Plaintiff’s counsel was about to start his submissions at the time the Plaintiff collapsed, it seems likely those submissions were at an advanced stage of preparation and that the Plaintiff would have contributed towards them. All that would have been required was for a final version of these submissions to be provided to the Court, which could have been done in writing. This should have been addressed by Dr Khoo. Ms Grapsas, of course, could not have known any of this, as her report was written in 2023; (d) The expert reports are from a general practitioner and a psychologist, not an expert opining about cardiac issues. Dr Khoo’s description of the material he had was limited to “medical records” and the only report he had was the report of Ms Grapsas. Dr Khoo did not make any further inquiries of a medical nature, nor was his attention drawn to the more robust opinions expressed by the practitioners whose reports were served on the Court in response to the Defendants’ application to dispense with a jury. This is one of those rare cases where the Court actually has more information about the Plaintiff’s health than the reporting doctor does.

21. Mr Senior drew to my attention the completely contrary medical evidence served in prior applications, as well as the Plaintiff’s assertion of robust health in his affidavit of 15 September 2025. Medical evidence of his fitness for a jury trial was relied on to oppose the Defendants’ request for the hearing to take place before a judge sitting alone, in part because of the likelihood of a cardiac episode.

22. In his affidavit, Mr Hooper has then confirmed his medical advice as follows:

“3 I have been told by my doctors that as a result of the changes to my medication there should not be a reoccurrence of the medical episodes which caused me to be admitted to hospital on 28 July 2025.

4 Many months prior to the commencement of the trial I booked a non-refundable holiday to travel overseas. My doctors cleared me to travel provided I took my medication to control my heart, blood thickness and blood pressure. I continue to take my prescribed medication.

5 I departed Australia on 17 August 2025. I am scheduled to return to Australia on Friday 26 September 2025.

6 Dr Koltyar is scheduled to discuss my case at a meeting of the St Vincents’s Hospital Specialist Panel at the end of September.”

23. Mr Senior submits that these reports are so much at odds with the reports previously served by the Plaintiff’s solicitors, as well as the Plaintiff’s own affidavit, as to cast doubt on the Plaintiff’s bona fides. Further, Ms Grapsas’ report relates to his psychological issues and not to his heart condition, and Dr Khoo’s report, written at a time when the Plaintiff had collapsed in Court a second time, shows no understanding of how much the Plaintiff would have had to do to finish the case. Subject to the actual delivery of the Plaintiff’s already largely completed submissions, which could have been handed up in writing, or the Plaintiff excused from attending, the case was over.

24. Mr Tiedt asked me to accept that the Plaintiff decided to discontinue on medical advice and also submitted that the Plaintiff’s collapse in Court during two jury trials were of themselves sufficient evidence that he would be unwise to continue.

Conclusions concerning the asserted medical reason for discontinuance

25. Neither of these reports is of any assistance to the Plaintiff in terms of establishing that the Plaintiff is medically incapable of continuing these proceedings to finality or has made the decision to discontinue for this reason. The Plaintiff, who is overseas on holiday, has not provided any evidence as to what role, if any, his medical condition has played.

26. Mr Tiedt’s submission is that the importance of the medical issue trumps s 40 arguments. There is insufficient evidence to do so but even if there were, that would not be sufficient reason for refusing to make s 40 orders. In Ainsworth v James, [12] there was incontrovertible evidence that if the gravely ill defendant, Mr Burden, gave evidence, it would kill him. At paragraph [15], James J, referring to Herron v McG**regor, [13] refused the defendant’s application for a permanent stay of proceedings, stating that while such considerations were relevant in criminal matters, they played no part in civil cases, where the fact that such exigencies occurred should not deny a party the redress that it seeks and that should be given.

27. The issue of assertedly conflicting (and thus, Mr Senior submits, false) statements by the Plaintiff and the role this assertedly false evidence plays in the asserted abuse of process or hopeless case arguments are considered in the section of this Judgment concerning abuse of process.

The offers made by the Parties

28. The next issue is whether the Defendants can rely upon s 40 to establish an entitlement to indemnity costs.

29. The Defendants submit that the strength of their case is the explanation for the range of settlement offers between the Parties which, unusually for indemnity costs applications, do not include any damages component and which are predicated on the inevitability of success by the defendants.

Chronology of offers made by the Defendants

First offer

30. On 29 January 2021, the defendants sent a letter to the plaintiff offering to resolve the matter on the following basis:

(a) Plaintiff to pay the defendants’ costs as agreed in the sum of $50,000 in discharge of the costs order made on 23 April 2020 (b) Verdict for the defendants. (c) Other than the costs in (a), all parties to pay their own costs

The 29 January 2021 offer expired on 12 February 2021 with no response from the plaintiff.

Second Offer

31. On 18 March 2021, the defendants sent a letter to the plaintiff offering to resolve the matter on the following basis:

(a) Plaintiff to pay the defendant’s costs as agreed or assessed. (b) Verdict for the defendants.

Third Offer

32. On 18 July 2023, the defendants offered:

(a) Entry into a deed of release, by which the plaintiff agrees to release the defendants from the claim made in the proceedings and to apply for a dismissal, including terms as to non-disparagement and confidentiality (a sought by the plaintiff); and (b) Payment by the plaintiff towards the defendants’ costs in the amount of $150,000.

Fourth Offer

33. On 14th August 2023, the defendants offered to resolve the matter on the following basis:

(a) Entry into a deed of release, by which the plaintiff agrees to release the defendants from the claims made in the proceedings and to apply for a dismissal, including terms as to non-disparagement ad confidentiality (previously agreed); (b) Payment by the plaintiff towards the defendant’s legal costs in the amount of $140,000; (c) Sum to be paid to the defendants within 7 days of acceptance the offer; and (d) Otherwise, each party to pay their own costs of the proceedings.

Fifth Offer

34. On 23 August 2023, the defendants offered to resolve the matter on the following basis:

(a) Entry into a deed of release, by which the plaintiff agrees to release the defendants from the claims made in the proceedings and to apply for a dismissal, and including terms as to non-disparagement and confidentiality (previously agreed); (b) Payment by the plaintiff towards the defendant’s legal costs in the amount of $140,000. (c) Sum to be paid to the defendants within 7 days of acceptance of the offer, and (d) Otherwise, each part to pay their own costs of the proceedings.

Chronology of offers made by the Plaintiff to settle the matter

35. 31 July

First Offer

36. On 31 July 2019 the Plaintiff made an offer in the following terms:

1. The provision of an open apology to Mr Hooper in a form mutually agreeable to the parties, but at a minimum:

a. stating that no independent and external reviewer recommended that Mr Hooper be censured; and

b. apologising to Mr Hooper.

2. Payment by the Council to Mr Hooper of $5,000.

3. Payment by the Council of Mr Hooper’s legal costs in the amount of $20,000.

4. The entry into a deed of release, by which Mr Hooper agrees to release the defendants from the claims made in the proceeding and to apply for a dismissal and including terms as to confidentiality but not extending to the open apology.

Second Offer

37. On 24 February 2021, the Plaintiff made an offer in the following terms:

1. The proceedings be dismissed, with no orders as to costs, and the vacation of all previous costs orders.

2. Each party is to bear his/her/its own costs of the proceedings.

Third Offer

38. On 15 March 2021, the Plaintiff made an offer in the following terms

1. The plaintiff to pay the costs ordered in an amount as agreed or, failing agreement, as assessed.

2. The proceedings be withdrawn and dismissed with no order as to costs, to the intent that each party shall otherwise bear that party’s own costs.

How s 40 operates

39. The principles of law relevant to the award of indemnity costs under s 40 are well established and have been helpfully set out by Mr Senior in his written submissions.

40. Where an offer of compromise or Calderbank offer [14] is made, each offer is generally considered separately. Where both parties make a series of offers, this approach to settlement offers has a two-dimensional effect in that it does not portray the range of issues and events said to be relevant and/or to be newly considered. Should I depart from this usual practice and consider the offers as a whole? There is no authority at common law to consider all offers holistically, as opposed to considering each offer one by one.

41. However, this is precisely what s 40(2)(a) tells the Court to do, as the Court considering an indemnity costs application is directed to take into account other aspects of the conduct of the hearing, such as whether the opposing party made any offer at all. Not making any offer may be sufficient of itself to warrant the making of an indemnity costs order. [15] In Hall v Aldridge [No 2], [16] Solomon J confirms this at [8]:

The special costs provisions in the Act differ somewhat from the usual approach to costs in civil proceedings. The provisions seek to address a concern that the costs of defamation proceedings may prohibit persons who have a legitimate claim from pursuing relief. Unless in appropriate cases costs are awarded on an indemnity basis, a plaintiff may be out of pocket to such an extent that the risks in bringing proceedings are unacceptable.

(Footnote omitted.)

42. The offers made by the Defendants involved the Plaintiff not merely walking away, but capitulating. There is no concession of any significance. By comparison, the Plaintiff’s offers involved, first, payment of a small sum, then nothing at all, then an order for the Plaintiff to pay costs as at 15 March 2021.

43. Each of the Plaintiff’s offers was one of common sense in terms of ending the dispute. It should not be overlooked that the Council had provided erroneous information to the journalist, however innocent that error may have been. In those circumstances, the Plaintiff’s rejection of each of the offers, seen in context of the offers he himself was prepared to make, was not unreasonable.

44. The Defendants have no entitlement to rely upon s 40 in their application for indemnity costs, having regard to these special statutory factors. [17] Can the Defendants, however, succeed on the basis of consideration of their offers as Calderbank offers?

45. For the reasons set out by Bromwich J in Hayson v The Age Company (No 3) (Hayson (No 3), [18] at [75], referring to Zoef v Nationwide News Pty Ltd (No 2), [19] the Defendants may not do so. The interplay between common law principles and s 40 should not permit the language of s 40 to be undermined.

Did the Plaintiff bring a hopeless case?

46. The third issue is whether the plaintiff’s case was an abuse of process or otherwise so disproportionate as to warrant an award of costs on an indemnity basis. I note the references to proportionality in Ward JA’s refusal of indemnity costs in A.C.N. 627087030 Pty Ltd v Poche (Poche) [20] but that application for indemnity costs on such a basis was not successful and, in the absence of submissions on this issue from the Parties, I do not intend to consider proportionality further.

47. Poche is an important decision on indemnity costs for hopeless litigation, particularly when such conduct occurs at the end of lengthy and costly proceedings. Her Honour noted the interaction of strong evidence such as criminal convictions and abuse of process, particularly in cases where the plaintiff is also guilty of delay and unreadiness as well as a criminal or notorious record or reputation. What makes Poche particularly apposite here is that Ward JA’s reasoning is based on two defamation judgments, namely Hoser v Hartcher (Hoser) [21] and Gill v Eatts. [22]

48. While the adverse findings in Poche relate to conduct less serious than the other two judgments, Ward JA’s application of the relevant principles are an important guide to determination of indemnity costs where a case is hopeless or an abuse of process. It is particularly useful in defamation proceedings, where evidence of conviction [23] or disciplinary proceedings [24] may play a significant role.

49. First, Mr Senior submits that the penalty for one of the two findings, coupled with the evidence of justification of other conduct by the Plaintiff as set out in the particulars of justification and contextual truth, render the Plaintiff’s case almost unwinnable or, at the very least, likely to result in an award of damages so small that indemnity costs would be appropriate.

50. This is a difficult argument for the Defendants to succeed on, due to the rejection of similar arguments in the judgments discussed below, even if the matter is self-evidently substantially true (and thus a hopeless cause of action) as well as being an abuse of process, as the result in Poche demonstrates.

51. The first issue is whether abuse of process has been demonstrated.

Abuse of process in defamation proceedings

52. The first defamation judgment Ward JA identifies is Hoser. In that case, Mr Hoser had a long criminal record commencing in 1976. [25] He was the author of “numerous” [26] publications accusing a government department and others of corruption and criminal activity, principally in the 1970s and 1980s. The Independent Commission Against Corruption (ICAC) published a report dismissing the allegations in November 1993 and the defendant, the NSW Minister for the Environment, issued a press release calling Mr Hoser’s allegations “bizarre”.

53. Mr Hoser brought proceedings for defamation for the press release in July 1995 but took no further steps until March 1998 when Mr Hoser’s new solicitors sought to “revive” [27] the action. At the hearing of the defendant’s summary dismissal application in 1999, the plaintiff’s new solicitor “unequivocally” [28] asserted that Mr Hoser had delayed only because he had been “deceived” [29] by his former solicitor, who led him to believe that he was continuing to act. That solicitor, when called by the defendant, denied these assertions and claimed he had told both the plaintiff and the defendants’ legal representatives that he was no longer acting, after discovering the plaintiff had been convicted of perjury in October 1995, shortly after commencing the defamation proceedings. Furthermore, the plaintiff had consulted other solicitors after his release from imprisonment in August 1997. [30]

54. Simpson J in Hoser recited this background, set out the relevant principles for striking out for want of prosecution (which are extracted by Ward JA in Poche) and refused the summary dismissal application. While Simpson J accepted that the defendant’s previous solicitor’s evidence that he considered the plaintiff’s defamation case would be adversely affected by the perjury conviction and that he advised the plaintiff and his opponents accordingly, the fault lay with the defendant for not proactively seeking to locate the plaintiff to continue the action and serve a defence.

55. Although not referred to in Poche, there were further delays by Mr Hoser, which led to a further application by Mr Hartcher, this time for a change of venue to the District Court. [31] This was opposed, on the basis that the range of damages likely in defamation actions required it to remain in the Supreme Court. Levine J took a totally different view to that of Simpson J concerning the impact of Mr Hoser’s perjury conviction as well as the contents of the ICAC report; not only would these severely impact damages, but his credit on all issues would suffer, including his explanation of further delays since Simpson J’s judgment. Levine J at [8] [32] acceded to the defendant’s request to transfer the proceedings to the District Court [33] and ordered the plaintiff to pay the defendant’s costs.

56. The second defamation judgment referred to by Ward JA is Gill v Eatts [34] which was one of many cases referred to a special call-over to cope with the backlog of dormant defamation actions. Dr Gill was, like Mr Hoser, the subject of a government inquiry (“the Royal Commission into Deep Sleep Therapy”) in the 1970s, but in his case it was the use of controversial medical treatment for patients, which media outlets claimed resulted in 24 deaths in “tragic, and now notorious” circumstances. [35] The plaintiff commenced two defamation actions in 1986, one against the Australian Broadcasting Corporation and the other against Nationwide News Pty Ltd and a nurse. The proceedings were readied up to call-over by the time the Royal Commission report was published in 1990 but Dr Gill took no further action from August 1991 until 1998, when the Court, concerned at the many dormant defamation actions in the Supreme Court registry, set up a special call-over of inactive claims. The plaintiff instructed new legal representatives who put evidence before the court that the plaintiff had been “very busy indeed” [36] in defending criminal and disciplinary proceedings as well as between 60-80 negligence claims. The criminal proceedings were stayed in 1993, but he was “inundated” [37] with claims, which he resolved with “remarkable” [38] success in that only one claim remained unresolved. During these seven years, the defendants in the two defamation claims, like the defendant in Hoser, made no attempt to prosecute the case further.

57. In cross-examination, Dr Gill denied that, but for the Court’s dormant call-over, the matter would never have been restarted and said that he was waiting for the last remaining claim to be determined. Levine J, at [52]-[58], did not accept this explanation, holding that the plaintiff made a conscious decision to delay. His Honour held that the evidence of actual prejudice caused by the delay, which included inability to contact the nurse who was a defendant, was one of significant disadvantage, citing Gill v Walton [39] at 200B.

58. Levine J also took into account factors not considered in Hoser. First, he referred with approval to statements of case management policy in Grovit v Doctor [40] and clearly had in mind the case management concerns which had led to the setting up of the dormant matters call-over. Second, and more importantly, while Levine J endorsed Simpson J’s views on delay, his view of the lack of merit in Dr Gill’s claim was a crucial factor and central to the claim being struck out.

59. These three judgments show a differing view as to hopelessness amounting to abuse of process. For Simpson J, nothing excused the defendant from not getting on with the case. For Levine J, a conviction for perjury and an adverse ICAC report were powerful factors.

60. Which view has prevailed? Examination of more recent decisions on abuse of process, coincidentally involving the same plaintiffs, show that the views of Simpson J have prevailed.

61. Dr Gill waited nearly two decades before suing for defamation again. [41] The matter complained of was a chapter in a book, published in 2017, giving rise to similar imputations to those pleaded in Gill v Eatts [42] in 1986. This time, the respondents’ complaints of abuse of process warranting dismissal failed. Jagot J noted at [4] that “both Dr Herron and Dr Gill sued various media outlets and people for defamation between 1984 and 1986, but the defamation proceedings went nowhere”. In fact, as Jagot J observed at [32], it may be that, in the intervening 30 years, “the applicants’ reputations have been rehabilitated by the passing of time”.

62. An even starker example occurs in relation to Mr Hoser, whose subsequent criminal convictions and adverse civil findings have been particularised in some detail in the defences filed in Hoser v Harrison (No 3) [43] and Hoser v Harrison (No 4). [44] The respondents in both applications submitted that the evidence of Mr Hoser’s lack of reputation was such as to warrant a preliminary hearing as to serious harm and/or summary dismissal, but to no avail. Manousaridis J refused the application on the basis that preliminary hearings were contrary to the superior case management legislation available in the Federal Circuit and Family Court of Australia Act 2021 (Cth). If McGrane v BTQ Channel 7 (McGrane) [45] came before that Court today, it seems likely that the same orders that Martin J had so reluctantly given would still be made.

63. Similarly, in Hayson v The Age Company (No 2) (Hayson (No 2) [46] at [91] and [95], while Bromwich J acknowledged that “criminal convictions or adverse findings in civil proceedings” are relevant to damages, Mr Hayson was awarded $50,000 including aggravated damages, despite considerable evidence of his bad reputation including criminal matters. Applications for indemnity costs by both parties were refused and the respondent was ordered to pay the applicant’s costs on the usual basis (although leave would have been required because the damages were below the court’s minimum threshold). [47]

64. This approach is also evident in defamation proceedings where one of the parties has a criminal or disciplinary record of some length, but where it is not taken into account and indeed not even mentioned. To give but one example, in Muriniti v Kalil, [48] the Court of Appeal set aside a personal costs order made against solicitors for a defence which was asserted to be so hopeless as to be an abuse. The assertedly hopeless defence of justification, to allegations of animal cruelty by a veterinarian, set out many disciplinary findings and convictions in New South Wales and the United States over more than four decades [49] but neither judgment explains its asserted hopelessness despite the special entitlement convictions have as evidence in defamation proceedings.

Application of these principles to these proceedings

65. By comparison to the cases summarised above, the adverse findings concerning the Plaintiff were mere trifles. Pleading an imputation based on the assertedly true portions does not amount to abuse of process; the Defendants were unsuccessful on this issue in McGrane. In any event, the Plaintiff sensibly resolved this by only pleading two imputations of a specific nature, focussing on the error in the description of the censure in the Defendants’ email. When the Defendants responded by pleading three further imputations of a more general kind, namely “Maisel” [50] imputations, the Plaintiff, in response, brought an application to “plead back” [51] the Defendants’ three new contextual imputations.

66. The Defendants did not oppose that application, provided that leave was conditional upon preservation of their entitlement to continue to rely upon the contextual truth defence as it had been interpreted by the Court prior to the “unwelcome change” [52] of the s 26 defence after Besser v Kermode. [53] This artificial construct was controversial, as my Judgment noted, but leave was granted: Hooper v Phipps [54] at [19]. The effect of this ruling was that the Defendants were able to lead evidence in relation to their own imputations and argue that success on those would “swamp” the Plaintiff’s more restricted imputations and permit the Defendants to win the case, as opposed to merely have this evidence taken into account on damages, which would have been the result required by the Court of Appeal’s reinterpretation of s 26.

67. The Defendants submit that my 2020 ruling gave them a much stronger case than would otherwise be the case. Alternatively, if the Plaintiff had won, the Defendants submit that any damages would have been nominal.

68. I do not accept this submission. It remains uncertain whether the artificial “plead back” exception identified in my ruling would have survived appeal or, if it had, whether the facts warranted the findings confirmed on appeal in Roberts-Smith v Fairfax Media Publications Pty Ltd. [55]

69. If the defence had not succeeded, it is unlikely that the damages would have been reduced so substantially that indemnity costs would have been awarded in whole or in part for such a reason, for the reasons explained by Bromwich J in Hayson (No 3)**. Although the courts acknowledge [56] that criminal convictions are to be taken into account on a range of issues including credit as well as mitigation, the reality is that adverse findings of any kind appear to carry little persuasive value.

Abuse of process and a “hopeless case”

70. As to the checklist in Hoser, nothing in the conduct of the Plaintiff could compare to the conduct of the plaintiffs in any of the cases discussed above. At worst, he brought an unmeritorious application before the Supreme Court which was dealt with courteously but firmly before the judge who dismissed the application with costs, a decision to which he responded poorly by making accusations which either did or could have warranted the adverse findings made.

71. Nor did he conduct litigation in the dilatory and contentious way that was the subject of animadversion by Simpson and Levine JJ. The Plaintiff commenced proceedings within a reasonable time, sought a jury for a fact situation ideally suited for jury trial and conducted the proceedings with reasonable expedition, making appropriate settlement offers at appropriate times.

72. One issue remains, namely Mr Senior’s submission that the conflicting medical evidence demonstrates dishonesty or unsatisfactory conduct by Mr Hooper. False or misleading evidence, especially expert evidence, is contrary to the interests of justice, even where there is no intention to mislead, because “false evidence is false evidence”. [57]

73. There is no reference to this factor in Simpson J’s checklist in Hoser or in Ward JA’s consideration of it. Although Mr Hoser’s claim that his failure to prosecute his defamation case because his solicitor lied to him about doing so turned out not to be accepted by the court, this did not trouble Simpson J. It does appear to have been of concern to Levine J in both Hoser and Gill v Eatts, but Ward JA’s judgment in Poche is both more reasoned and more nuanced as well as being more to the point for the purposes of this application, in that her Honour was considering an application for indemnity costs after she had struck out proceedings as an abuse of process. Accordingly, if the Plaintiff were in fact lying to the Court about his health (a conclusion I have to accept is reasonable to find), that would not be sufficient for an award of costs on an indemnity basis.

74. The Defendants’ application for indemnity costs is accordingly refused.

75. An additional costs issue is the question of unpaid hearing fees and jury fees, both of which are payable by the plaintiff.

Section 10 of the Civil P**rocedure Regulation 2017 (NSW)

76. As I noted in Bibby v Viva Energy Australia Pty Ltd [58] at [37]-[41] as well as in my previous Judgment in these proceedings, s 10 of the Civil P**rocedure Regulation 2017 (NSW) imposes obligations to pay court hearing fees not only on plaintiffs but also, if a plaintiff defaults, on the solicitor with conduct of the matter. In defamation actions, there is the added burden that if such fees are not paid, any jury requisition lodged without immediate payment will not be honoured by the Court. [59]

77. Both Mr Tiedt and, before him, Mr Lewis, made strenuous attempts to pay the hearing and jury fees, but they were not provided with the necessary documentation to enable these to be paid, with the result that Court fees for juries as well as hearing fees went unpaid for some years. It would appear, from Palavi v Radio 2UE Sydney Pty Limited, [60] that this situation well predates the commencement of these proceedings.

78. Attempts by my staff to calculate these fees and to assist the relevant Court staff were made, without much success; it would appear that fees of this kind are not only owed in defamation actions, but in other civil actions in the Court, such as personal injury claims.

79. Such fee requisitions as have been generated have now been paid. Neither Mr Lewis nor Mr Tiedt should have the worry of personal liability hanging over them, although it seems unlikely that any further adjustments to these fees will occur. To err on the side of caution, I propose to make an order waiving any further requirement to pay either jury or hearing fees in these proceedings.

Concluding remarks and Orders

80. The Parties have informed the Court that they have resolved all other costs issues by consent and no further orders are necessary.

81. I briefly note that the legal representatives of both Parties, both past and present, have at all times conducted these proceedings with the utmost diligence and courtesy. I also thank the Court of Appeal for the celerity with which they dealt with the Plaintiff’s appeal.

82. The Orders I make are as follows:

83. The Defendants’ application seeking the costs of these proceedings to be paid on an indemnity basis is refused.

84. The Plaintiff is to pay the costs of these proceedings on a party and party basis, including the costs of this application.

85. Any further requirement for the Plaintiff and/or his legal representatives to pay hearing or jury fees under s 10 of the Civil Procedure R**egulation 2017 (NSW) is waived.

**********

Endnotes

Hennessy v Lynch (No. 4) [2008] NSWDC 15 at [5]-[27].

Piggott v Van Der Veen [2025] NSWDC 391 at [42].

Hooper v Phipps [2020] NSWDC 134 at [19]-[52]; O’Shanassy v Turland [2025] NSWDC 23 at [37]-[41].

Jones v Sutton (No 2) [2005] NSWCA 203.

There is no claim made against the North Shore Times itself, which is unsurprising given its description of the Clochemerlesque elements of the dispute on both sides.

(1997) 186 CLR 622; [1997] HCA 6.

Australian Securities and Investments Commission v Diploma Group Limited (No 3) [2017] FCA 891 at [18].

See, eg, Walter v Buckeridge (No 4) [2011] WASC 313.

Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352.

Packer v Meagher [1984] 3 NSWLR 486 at 500.

Saigal v Goel [2026] NSWCA 45 at [14].

[2005] NSWSC 338.

(1986) 6 NSWLR 246.

Calderbank v Calderbank [1976] Fam 93 [1976] 3 All ER 333.

Hall v Aldridge [No 2] [2026] WASC 3 at [8]-[9].

[2026] WASC 3.

Hayson v The Age Company (No 3) [2020] FCA 1163 at [44]-[74] (Bromwich J).

[2020] FCA 1163.

[2017] NSWCA 2.

[2025] NSWCA 252.

[1999] NSWSC 527.

[1999] NSWSC 1056; [1999] ATR 81-529.

See Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591.

See Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118.

See R v Hoser and Kotabi Pty Ltd [2001] VSC 443 where Eames J delivered judgment on contempt. See also, the appeal of that matter in Hoser v The Queen [2003] VSCA 194 at [14].

R v Hoser and Kotabi Pty Ltd [2001] VSC 443 at [2].

Hoser at [10].

Hoser at [35].

Hoser at [15].

Hoser at [17].

Hoser v Hartcher [1999] NSWSC 1060.

Hoser v Hartcher [1999] NSWSC 1060.

See Sporting Shooters Association of Australia Pty Ltd (NSW Inc) v McGuire [2014] NSWSC 1370 (McCallum J).

[1999] NSWSC 1056; [1999] ATR 81-529.

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at [1] (Mason CJ, Deane and Dawson JJ).

Gill v Eatts [1999] NSWSC 1056 at [16]; [1999] ATR 81-529.

Gill v Eatts [1999] NSWSC 1056 at [23]; [1999] ATR 81-529.

Gill v Eatts [1999] NSWSC 1056 at [24]; [1999] ATR 81-529.

(1991) 25 NSWLR 190.

(1997) 1 WLR 640.

Herron v Harpercollins [2018] FCA 1495.

[1999] NSWSC 1056; [1999] ATR 81-529.

[2026] FedCFamC2G 224.

[2026] FedCFamC2G 1006. The drafters of the defences in both Hoser v Harrison (No 3) [2026] FedCFamC2G 224 and Hoser v Harrison (No 4) [2026] FedCFamC2G 1006 did not include Levine J’s animadversions in Hoser v Hartcher [1999] NSWSC 1060 at [8] or Mr Hoser’s unsatisfactory evidence in Vacik Distributors Pty Limited v Australian Broadcasting Corporation [1999] NSWSC 1176 at [7]-[8], [36]) and Vacik Distributors Pty Ltd v Australian Broadcasting Corporation (No 8) [2000] NSWSC 732 at [8], [29]-[30], [66], which resulted in substantial awards for plaintiffs he accused, inter alia, of disposing of victims’ bodies in a kangaroo meat grinder).

[2011] QSC 290.

[2020] FCA 361.

Hayson v The Age Company (No 3) [2020] FCA 1163.

[2022] NSWCA 109.

Some are set out in Eppinga v Kalil [2021] NSWDC 549.

Maisel v Financial Times Ltd [1915] 3 KB 336 at 339-340. See also, David K Rolph, Rolph on Defamation (2nd ed, 2024, Thomson Reuters) at [10.20] fn 44.

David K Rolph, Rolph on Defamation (2nd ed, 2024, Thomson Reuters) at [10.170].

David K Rolph, Rolph on Defamation (2nd ed, 2024, Thomson Reuters) at [10.140] fn 182.

(2011) 81 NSWLR 157; [2011] NSWCA 174.

[2020] NSWDC 134.

(2025) 310 FCR 170; [2025] FCAFC 67.

See Hayson (No 2) at [91].

Daniel R Granillo v State of Hawaii (Supreme Court of the State of Hawaii, SCWC-22-0000740, 15 July 2026) at [1].

(No. 2) [2025] NSWDC 407.

Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14.

[2012] NSWDC 14.

Amendments

24 July 2026

Amendment to the coversheet Orders field - the word "for" deleted

27 July 2026

Corrections to cover-page Citation corrections at footnotes 23 and 27-30 (and former footnote 31 removed); and at paragraph 62 Punctuation corrections at paragraphs 14, 15, 40, 46, 48, 56, 64, 65, 66