National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass

REASONS FOR JUDGMENT 1 My reasons for judgment of 26 October 2007 in this matter occupied almost 100 pages of typed script. I do not intend in these reasons to repeat my recitation of the facts and the issues or my findings and reasons. 2 However, I should repeat the tentative view which I expressed in relation to costs at [317]-[322]: '317 It may be seen that the applicants' claims for relief under the Trade Practices Act and/or the Fair Trading Act have failed and I have already indicated that they should be dismissed with costs. 318 The first applicant's claims for relief in respect of alleged defamation of it by the publication of the 13 September facsimile have also failed. 319 The claims of the second and third applicants for damages for defamation against the second respondent in relation to the publication of the ATO letter have failed and the claims for damages for defamation by the second applicant against the third respondent for damages for defamation in respect of publication of the 15 September email have also failed. 320 On the other hand, the claims for damages for defamation brought by the second and third applicants against the first and third respondents in respect of the publication of the 13 September facsimile have succeeded. 321 In relation to costs in proceedings for defamation in New South Wales s 48A of the Defamation Act 1974 (NSW) relevantly provides: "48A(1) In awarding costs in respect of proceedings for defamation, the court may have regard to the following matters: (a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), (b) whether the costs in the proceedings may exceed the quantum of damages to be awarded in the proceedings, (c) such other matters as the court considers relevant. (2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise): (a) if proceedings for defamation are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or (b) if proceedings for defamation 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. (3) In this section: settlement offer means any genuine offer to settle the proceedings made before the proceedings are determined and includes an offer to make amends (whether made before or after the proceedings are commenced)." 322 Given the findings which have been made on the various causes of action that have been pleaded and doing justice between the parties, it seems to me the appropriate order as to costs in this case is that there be no order as to costs. However, before any order is made I propose to direct the parties to file and serve such written submissions as to costs as they may be advised so that the question can be addressed promptly and a decision reached as to whether the tentative view that I have mentioned is appropriate or some other order should be made.' 3 The order which I made on 26 October 2007 in respect of costs was as follows: '5. The parties file and serve such written submissions as they may be advised in respect of costs on or before 1 November 2007.' 4 At the request of the applicants, the time for filing written submissions in respect of costs was extended to 8 November 2007. 5 A submission on costs by Ms Chrysanthou of counsel, dated 1 November 2007, was filed by the respondents on 8 November 2007. It was apparently served on the appellants on the same day. 6 A submission on costs by Mr Henskens of counsel, dated 8 November 2007, was filed for the applicants on 8 November 2007. Amongst other things, that submission responds to the respondents' submission on costs. 7 In support of their submission, the respondents rely, in part, on an affidavit of Gary Alan White sworn 1 November 2007. Mr White was the solicitor on the record for the respondents from 23 February 2006 to 29 November 2006. 8 The applicants' submissions rely in part on an affidavit of Alice Chen sworn 8 November 2007. Miss Chen assisted the applicants' solicitor in the day to day management of the proceedings. 9 The applicants were legally represented throughout. The respondents, on the other hand, were unrepresented as from 29 November 2006. 10 The hearing occupied some 16 days commencing on 4 December 2006 and concluding on 20 April 2007. 11 Whilst all three respondents enjoyed the benefit of a Defence filed 3 November 2006, at a time when Mr White was appearing for them, the first respondent was unrepresented at the hearing, the second respondent appeared in person until 13 April 2007, withdrawing from the hearing and relying upon his Defence, and the third respondent appeared in person throughout the hearing. 12 The proceedings concerned the publication of three separate documents being: (a) the 13 September facsimile (of 13 September 2005 - three pages, a copy of which was reproduced as Appendix A to my reasons for judgment of 26 October 2007); (b) the ATO letter (of 13 September 2005 - three pages, as set out in Appendix B); and (c) the 15 September email (of 15 September 2005 - one page, as set out in Appendix C). 13 A short summary of the several claims as made and pleaded in the Third Further Amended Application and the Third Further Amended Statement of Claim, both filed 27 October 2006, and the ultimate outcome of those claims may be expressed as follows: Claims Outcome First Applicant (a) claims against the first respondent under s 52(1) of the Trade Practices Act alleging misleading and deceptive conduct or conduct that was likely to mislead or deceive in respect of Appendices A, B and C Failed (b) claims against the second and third respondents under s 42(1) of the Fair Trading Act (NSW) alleging misleading and deceptive conduct or conduct that was likely to mislead or deceive in respect of Appendices A, B and C Failed (c) Claims in respect of the alleged defamation of the first applicant by the respondents by the publication of Appendix A Failed Second Applicant (d) Claims in respect of the alleged defamation of the second applicant by the first and third respondents by the publication of Appendix A Succeeded (e) Claims in respect of the alleged defamation of the second applicant by the second respondent by the publication of Appendix A Failed (f) Claims in respect of the alleged defamation of the second applicant by the respondents by the publication of Appendix B Failed (g) Claims in respect of the alleged defamation of the second applicant by the first and third respondents by the publication of Appendix C Failed Third Applicant (h) Claims in respect of the alleged defamation of the third applicant by the first and third respondents by the publication of Appendix A Succeeded (i) Claims in respect of the alleged defamation of the third applicant by the second respondent by the publication of Appendix A Failed (j) Claims in respect of the alleged defamation of the third applicant by the respondents by the publication of Appendix B Failed