Paclaw Pty Ltd v Chalik

[2026] NSWSC 766

Supreme Court of NSW|2026-06-22|Before: Campbell J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-06-22

Before

Campbell J

Catchwords

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – defence of absolute privilege raised in defamation proceedings – ripe for summary determination DEFAMATION – defences – absolute privilege – whether submissions to a costs assessor are published on an occasion of absolute privilege

Source

Original judgment source is linked above.

Catchwords

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – defence of absolute privilege raised in defamation proceedings – ripe for summary determination DEFAMATION – defences – absolute privilege – whether submissions to a costs assessor are published on an occasion of absolute privilege

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Paclaw Pty Ltd v Chalik [2026] NSWSC 766

Hearing dates: 22 June 2026

Date of orders: 22 June 2026

Decision date: 22 June 2026

Jurisdiction: Common Law

Before: Campbell J

Decision: 1. Under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are summarily dismissed.
2. The plaintiff is to pay the defendant’s costs of the proceedings.
3. The defendant’s Notice of Motion of 29 March 2026 is otherwise dismissed.
4. The plaintiff’s Notice of Motion of 23 April 2026 is dismissed.

Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of proceedings – defence of absolute privilege raised in defamation proceedings – ripe for summary determination DEFAMATION – defences – absolute privilege – whether submissions to a costs assessor are published on an occasion of absolute privilege

HIS HONOUR: Two Motions are listed before me today in a matter in the defamation list. The first motion is the defendant’s Motion filed on 29 March 2026, which seeks summary dismissal of the plaintiff’s claim. In the event that the defendant’s application is unsuccessful he seeks an order for security for costs under the provisions of s 1335 of the Corporations Act 2001 (Cth) and under r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The second motion is the motion filed on behalf of the plaintiffs seeking leave to file and serve a Further Amended Statement of Claim, an interlocutory injunction restraining the defendant from the publication of any further defamatory matter, an order that Mr Derek Ziman, the defendant’s solicitor, be restrained from acting on the ground that he may be required to give evidence in the proceedings, and costs.
Mr Adamson, who is the third plaintiff, and a solicitor in practice in Coffs Harbour, appeared for the plaintiffs and Mr Ziman, solicitor, appeared for the defendant. By agreement with Mr Adamson and Mr Ziman I determined that I would hear the application for summary judgment first, make a decision about it, and if that application was unsuccessful, I would then move on to deal with the plaintiff’s notice of motion and with the defendant’s application for security in respect of the first plaintiff, which is a corporation alleged to be an excluded corporation for the purposes of s 9 of the Defamation Act 2005 (NSW) (“the Act”). One of the purposes of the proposed Further Amended Statement of Claim which Mr Adamson seeks leave to file is to include a claim on behalf of the company for injurious falsehood lest it be found to be not an excluded corporation.
The grounds upon which the defendant seeks summary judgment, or summary dismissal, as set forth in Mr Ziman’s written submissions, are twofold. First, Mr Ziman relies upon the statutory bar raised by s 12B of the Act in that the defendant asserts that particulars sought of the concerns notice which was served under s 12A were not provided and accordingly the statutory bar is engaged. Mr Adamson joins issue with that argument on the basis that the request for particulars was not a reasonable request for particulars within the meaning of s 12A(3). The second ground upon which Mr Ziman moves is the proposed defence of absolute privilege. Mr Ziman invokes, as I understand it, both the common law defence and the statutory form of the defence in s 27 of the Act.
The plaintiff’s case, as I will deal with in a little more detail shortly, arises out of submissions made in the course of a costs assessment pursuant to an application made for the assessment of solicitor/client costs under s 198 of the Legal Profession Uniform Law (NSW) (“the Uniform Law”). Mr Ziman’s submissions are that proceedings before a costs assessor are judicial in nature and the common law immunity which covers judges and other decision-makers exercising power in the nature of judicial power and extending to witnesses, advocates, and other legal practitioners, apply to those proceedings. He otherwise argues that under s 27, as I have said, the costs assessor is an Australian tribunal for the purpose of the Act.
As is well known, the ambit of the statutory defence is extended by s 27(2)(b) to a wide range of officials and bodies covered by sch 1 to the Act. Clause 18 of the schedule refers to certain bodies or individuals exercising power under the Uniform Law or the Legal Profession Uniform Law Application Act 2014 (NSW) (“the Application Act”), but in terms do not extend directly to a costs assessor appointed in accordance with the provisions of s 93C of the Application Act. This, of course, does not mean that the statute does not extend to them, but bringing a costs assessor and proceedings before a costs assessor within the statutory version of the privilege depends upon the defendant demonstrating that the costs assessor, manifestly not being a Court and not being a court official in accordance with the provisions of s 93C, would need to be a tribunal that has power to take evidence from witnesses before it on oath or affirmation: s 4 of the Act. However, whether or not a costs assessor is a tribunal as defined by s 4 of the Act, the common law defence is still capable of applying, assuming that the conditions of the common law are otherwise satisfied.
Mr Adamson argues that a costs assessor is not an Australian tribunal as defined by the Act, nor is it a body which by analogy with judicial immunity attracts the absolute privilege defence. I will deal with these submissions of each of Mr Ziman and Mr Adamson as I decide with the matter. I will say at this point in time that while the statutory form of defence under s 27 would not in terms apply to a cause of action framed in the tort of injurious falsehood, the common law immunity, if otherwise applicable to a costs assessment and to proceedings before a costs assessor, would be an effective answer to a claim for damages for injurious falsehood. It is not necessary to deal at length with the plaintiff’s case in defamation, but to provide context, some summary of it should be provided.

The plaintiff currently relies upon the Amended Statement of Claim, filed on 10 March 2026 in place of his original Statement of Claim filed on 12 February 2026. When I refer to Mr Adamson in the singular, I am referring, in substance, to all three plaintiffs. Mr Adamson, in the course of his practice, acted for a Mr Greg Chalik, in what I will refer to as probate proceedings in the Equity Division of the Court. The defendant in these proceedings, Mr Issac Chalik, who, as it happens is a legal practitioner currently employed in the office of Mr Ziman, was the defendant.
The relationship between Mr Adamson and Mr Greg Chalik broke down, and Mr Adamson considered that it was necessary to apply for an assessment of costs incurred by Mr Greg Chalik on a solicitor-and-client basis. And, while the application was filed out of time, fixed by s 198(3) of the Uniform Law, there was power to withstand that under s 198(4).
Mr Isaac Chalik effectively sought, as it were, to intervene in the costs assessment proceedings, to make submissions in respect of the assessment of Mr Adamson’s costs in acting for Mr Greg Chalik. I should say, they are brothers. In his initial email to the costs assessor, of 23 June 2025, at 12.36 pm, Mr Isaac Chalik disclosed that he was considering seeking damages against Mr Adamson arising out of his conduct of the proceedings on behalf of his brother, Greg Chalik. That is to say, conduct on behalf of Greg Chalik, not damages on behalf of Greg Chalik.
Mr Chalik summarised the nature of the submissions that he wished to make. There is no doubt to my mind that the matters he sought to raise were prima facie defamatory matters published by him concerning and about Mr Adamson. The first broad matter referred to in that email, which is attached to the original Statement of Claim and marked DM1, is that Mr Adamson did not disclose a Calderbank offer to his client during the proceedings, and, which I accept, would - if true - be a significant breach of a solicitor’s duty, and damaging to his reputation.
Secondly, and perhaps more significantly, Mr Chalik asserted that Mr Adamson “may not be frank in his disclosure of relevant information to the assessor,” and, of course, there can, perhaps, be no conduct more inimical to the professional obligations of a solicitor or a barrister than the duty of complete candour to a court or tribunal in which the solicitor is appearing. Again, there can be no doubt that, prima facie, the email to the costs assessor was the publication of a matter defamatory of Mr Adamson.
Under the provisions of the Application Act, the costs assessor is empowered to, inter alia, receive submissions. For instance, s 69(1) of the Application Act is in the following terms:

I am prepared to assume for present purposes that Mr Isaac Chalick is a “person concerned” for the purpose of s 69. Under s 69(1A), a cost assessor is also empowered to hold an oral hearing for the purpose of an application in accordance with the cost assessment rules. I have not been taken to any cost assessment rules which regulate or authorise the conduct of an oral hearing before an assessor. But it is clear that a costs assessor is considered to be an appropriate repository of such a power.
Mr Isaac Chalik’s submissions run to 13 pages and are marked DM2 in the Statement of Claim of 12 February 2026. They are the subject of the many imputations pleaded by Mr Adamson in the Statement of Claim. It is not appropriate for me to summarise all of the matters upon which Mr Adamson relies. It seems to me that the conclusions expressed at paragraph 47 of DM2 carefully summarised the contents of the body of the submission, which I have carefully read in Chambers to understand the claim in defamation. They include that:
Mr Adanson’s cost disclosures were invalid, unenforceable, and in breach of the rules;
Mr Adamson acted with knowledge of the low prospects of success in the proceedings;
Mr Adamson conducted the proceedings in a manner which, in several respects detailed in the submission, constituted misconduct which was capable of being referred to the Office of the Legal Services Commissioner;
Mr Adamson breached the rules under the Uniform Law in respect of cost disclosures, and the use of trust account funds that the cost claimed were not reasonably proportionate to the matter in dispute; and
the bill proposed for assessment made it difficult to determine work that was actually performed.
I interpolate that the substantial thrust of the submission was that Mr Chalik, who said he was acting in a personal, not professional capacity, said Mr Adamson’s charges were excessive, if not exorbitant, represented over servicing, and, in many cases, included charges for work not actually performed. And leaving aside the consideration the matter was out of time, that Mr Adamson had made many knowingly false statements to the claims assessor, but also to the Supreme Court at various times in the course of the litigation, including in proceedings before Henry J and Slattery J.
One does not need to analyse the matters which I have summarised, other than to conclude that, especially in the case of a practising lawyer, each of those matters is significantly defamatory on the face of it, subject, of course, to any defence that might be raised and sustained in due course. Mr Ziman has moved quickly to bring on this application, and a defence has not yet been filed. But quite apart from the defence, the subject of this application (that is to say absolute privilege) it seems reasonably clear that the defendant would wish to raise defences of justification and qualified privilege.
Those matters, of course, would require evidence before they could be sustained and would not be appropriate matters for summary judgment. I remind myself that powers of summary dismissal are to be exercised with caution and restraint. A party is not to be readily excluded from the opportunity to prove his case at trial after the usual interlocutory procedures of the Court have been availed of for the purpose of refining the issues and obtaining evidence to be led in the proceedings. There are many cases, of course, but as the plurality of the High Court observed in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, of all the various formulations that have been used by judges over the decades to indicate the nature of the hurdle that a defendant has to clear in order to establish a case for summary dismissal, it is enough to say that it must be demonstrated that the plaintiff’s case is clearly untenable in as much as the outcome of the litigation, if allowed to proceed to trial, can be predicted with that degree of certainty. I turn then to the grounds upon which the defendant relies.

I turn then to the question of the defence of absolute privilege. The defence of absolute privilege is an aspect of the doctrine of judicial immunity. It has long been held to apply beyond proceedings in courts of ordinary jurisdiction to other bodies and decision-makers exercising power, as I have said, in the nature of judicial power. I accept from Mr Adamson’s argument that generally, in this area, there is a dichotomy between the exercise of judicial power, even by a tribunal, on the one hand, and the exercise of administrative power, by a tribunal or other decision-maker, on the other. While that dichotomy is relatively clear conceptually, where the line is to be drawn between the two in practical terms is not.
Each matter needs to be determined upon analysis of the statutory framework, where applicable, within which the putative tribunal operates. Mr Ziman referred, as I have said to, to s 93(1)(b) of the Application Act, envisaging the administration of oaths by cost assessors if oral evidence is taken, and that is a fair point. As I have said, however, there is no material before me to suggest that rules fleshing out that power have yet been promulgated, giving effect to or rendering active that conferral of power on cost assessors. However, I accept that the cost assessor’s suitability during a cost assessment as a repository of that type of power is not of itself insignificant. Although, as I have said, s 93C(4) specifically says a cost assessor is not an officer of the Supreme Court when acting as a cost assessor. That is, with respect, not the end of the matter in determining whether the common law immunity applies.
Perhaps a matter that may weigh against the general judicial immunity applying to cost assessors is s 93F, which states that no liability attaches to a relevant person for any act or omission done or omitted in good faith in the administration of costs assessment powers (without limitation) in the exercise, or purported exercise, of functions under the legislation. “Relevant persons” extend to a costs assessor, whether sitting at first instance or acting as a member of a review panel. The conferral of this qualified statutory immunity, perhaps, may be a matter which weighs against the idea that the general law immunity applies. Mr Ziman also relies upon s 66, by which provision is made for the costs to which the Application Act applies being subject to the cost assessment rules, orders made by the relevant court or tribunal, or the rules of court or other legislation.
Mr Ziman argues that s 124(1)(j) of the Supreme Court Act 1970 (NSW), which provides for the regulation of matters relating to costs, brings the regulation of costs within “the ambit of the Supreme Court.” Section 124 is, of course, the rulemaking power conferred upon the Supreme Court Rules Committee. There may be a question about whether the language of para (j), which provides for the regulation of “any matters relating to the cost of proceedings in the Court,” applies to an assessment under Uniform Law of solicitor and client costs. I am rather inclined to the view that the rules committee would have power under that provision to so regulate the costs and the amount of the costs.
In any event, before turning to applicable general principle, I think it is important to observe that prior to the enactment of the Legal Profession Act 2004 (NSW) and of the current regime regulating the profession, the Application Act and the Uniform Law, it had been held by a series of cases in the Supreme Court that taxing masters and cost assessors enjoyed a derivative immunity of the Court. In Wentworth v Wentworth (1999) 46 NSWLR 300; [1999] NSWSC 317 at [35]-[59], Santow J sitting at first instance in the Equity Division, found that the registrar, when acting as a taxing master, was immune from civil suit. Santow J pointed out that while the functions of a taxing master were not perhaps strictly judicial, the exercise of the function is ancillary or incidental to the exercise of judicial power so as to take on that flavour.
In the Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 (“Kennedy Miller”), Handley JA (at 739) said the following:

The final result of course was that, in relation to work in court and work in chambers necessarily effecting the outcome in court, an advocate does enjoy immunity, as do judges, witnesses, jurors and the like.
I have not lost sight of the fact that Mr Adamson referred to decisions and principles discussed by Brereton J in a paper delivered as the keynote address to the New South Wales State Legal Conference of Friday 28 March 2008. His Honour referred to various decisions, including an observation by Rothman J in the matter of Doyle v Hall Chadwick [2007] NSWSC 159. The dispute in that case related to whether an assessor had power to determine questions of legal liability for costs, which his Honour decided they did not. I observe that the law has moved on since then. In the course of his judgment, his Honour expressed the opinion that costs assessors were exercising administrative rather than judicial power.
With respect, and as slow as I am ordinarily to depart from an opinion of Rothman J, I am of the view that his Honour was, with respect, incorrect in his characterisation of the nature of the costs assessor’s function, although I observe that he was concerned with the power to make a binding decision of law, which is a different matter from immunity from civil liability. Indeed, so far as that is concerned, Hodgson JA on appeal expressed a different view from his Honour about the question of power.
In any event, in my judgment, judicial immunity, for the reasons I have been addressing in the authorities to which I have referred, does extend to costs assessors under the Application Act and the Uniform Law. It seems to me, bearing in mind that costs assessors are called upon to quell a controversy between parties to litigation or solicitors and their clients as to the important matter of the amount of costs payable for the supply of legal services, always a matter of public interest, and that the decision, once made, for the purpose of enforcement, crystallises in a judgment of the Supreme Court, the conditions of necessity and public policy coalesce to require that the costs assessors have judicial immunity, perhaps with the restriction referred to in s 93F, and in the cases referred to, fraud or misconduct apart.
It follows from the authorities to which I have referred, including the seminal High Court decision of Mann v O*’*Neill, that if a costs assessor enjoys the immunity, so too do the other participants in the proceedings before the costs assessor. From this it also follows that I will make the orders sought in the defendant’s Notice of Motion filed 29 March 2026, and that the plaintiff’s Notice of Motion of 23 April 2026 is rendered otiose by that decision and need not be determined.
Let me say, as I have already in passing, without casting any aspersions on anybody, prima facie, the matters of which the plaintiffs complain were clearly defamatory, subject to the availability of defences not yet pleaded. However, that is not the point, as the cases indicate, from its inception as a doctrine, judicial immunity protects the decision-maker and the participants in the proceedings from liability, specifically from defamation. Accordingly, I make the following orders.
Under r 13.1 of the Uniform Civil Procedure Rules 2025 (NSW), the proceedings are summarily dismissed.
The plaintiff is to pay the defendant’s costs of the proceedings.
The defendant’s Notice of Motion of 29 March 2026 is otherwise dismissed.
The plaintiff’s Notice of Motion of 23 April 2026 is dismissed.

Paclaw Pty Ltd v Chalik

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

EX TEMPORE JUDGMENT (REVISED)

Factual Background and Principles

Defendant’s Motion

Concerns Notice

Absolute Privilege

Parties

Legislation Cited (11)

Cases Cited (14)