The Sydney Cosmetic Specialist Clinic Pty Ltd (ACN 151 319 032) v Hu

The costs application is adjourned part-heard

1. The plaintiffs were not even ready for this costs application when it was listed on 11 February 2021 for hearing. Mr Dean, appearing for the plaintiffs on that date, sought an adjournment to enable him to provide a chronology and submissions about the conduct of court proceedings between June and December 2017 and subsequent activities relevant to the second offer made by the third defendant. An additional reason for the adjournment was that the plaintiffs denied any knowledge of any offers ever being made by the first defendant.
2. The application was stood over part-heard to enable the parties to provide the relevant material set out in my orders. The first and third defendants complied with the timetable, but the plaintiffs, who changed representation, did not.
3. At the adjourned hearing, the new representatives for the plaintiffs again advised the court they were unaware of there being any offers by the first defendant, although these were referred to in my orders which are available on JusticeLink and had been provided to the plaintiffs' prior representatives. In addition, in lieu of compliance with my orders for exchange of chronologies and submissions, the plaintiffs sought to rely on a one-paragraph affidavit, sworn by the second plaintiff that morning, setting out bald figures for the total legal costs she had paid.
4. As Mr Polden complained that he had been taken by surprise and the material failed to comply with the orders I had made, I acceded to his request that the second plaintiff's affidavit be treated as a submission only.

The evidence of offers made by the first and third defendants

1. I set out each of the offers made.

The first defendant's settlement offers

1. On 12 July 2017, the first and second defendant, who were represented at the time by a firm of solicitors, made this first offer: "We offer to compromise these proceedings as against the first and second defendant on terms that: 1. The whole of the proceedings as against the first and second defendant be withdrawn in exchange for payment of AUD$8,000; 2. The first defendant apologize to the first and second plaintiff in the WeChat group referred to in the statement of claim and use his best endeavours to close the said WeChat group 7 days after the apology has been issued (the first defendant is no longer a member of the WeChat group and cannot close the group chat himself); 3. The first defendant undertakes not to publish or republish the above imputations or imputations to a similar effect on any social or other outlet controlled by the first defendant; and 4. The parties to bear their own costs. We are instructed that the second defendant was in no way involved, in fact or at law, in the alleged publication. This offer is open for acceptance until 4:00pm on 26 July 2017. This offer is made in accordance with principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333. In the event that this offer is rejected, we may rely on this letter as to costs."
2. On 2 August 2017, the first defendant's solicitors sent an offer on his behalf only: "We refer to the above matter and note that your office advised our colleague by way of telephone that our offer dated 11 July was rejected. In light of the previous offer being rejected, we are advised to compromise these proceedings as against the first defendant on the following terms: 1. The whole of the proceedings as against the first defendant be withdrawn in exchange for payment of AUD$20,000; 2. The first defendant make a general apology to correct the public record in the WeChat group referred to in the statement of claim; 3. The first defendant undertakes not to publish or republish the above imputations or imputations to a similar effect on any social media; 4. The first defendant to pay costs as agreed or assesse up to the date of this offer; We advise that according to the pleadings recorded on the Statement of Claim filed 16 June 2017, in particular the WeChat extracts pleaded, we are of the view that if not all, the majority of the damages claimed by the plaintiffs will be apportioned to the third and fourth defendants. Taking into account that this offer has been made at such an early state of the legal proceedings, the potential cost of the entire legal proceedings and the terms of the current offer, we are instructed to urge the plaintiffs in carefully considering the current offer. This offer is open for acceptance until 4:00pm on 10 August 2017. This offer is made in accordance with principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333. We also propose for the time to serve and file the defence to be postponed until the plaintiffs provide their position in relation to this offer. In the event that this offer is rejected, we may rely on this letter as to costs."
3. Another legal firm representing the first defendant sent the following offer shortly after the special case management conference in the District Court in May 2019: "We refer to the orders of the court on 16 May 2019. Consistent with those orders, the defendants have raised objections to your clients' further amended statement of claim (FASOC). Our client raised objections to the FASOC without prejudice to its position. That position is that it is not vicariously liable for the Wechat postings of the first defendant. We have previously raised matters supporting our client's position and consider traversing old territory of little utility. It is evident that this matter will now proceed to trial and that significant costs will be incurred. Combined Offer In the circumstances, and in an attempt to resolve the litigation and avoid incurring the further significant legal costs, our client and the first defendant are prepared to offer the plaintiffs the sum of $65,000 all inclusive (including interest and costs) (Settlement Sum) in full and final settlement of the respective claims against them, subject to suitable terms. The settlement sum is broken down as follows: $50,000 from the first defendant; and $15,000 from the second defendant. The first and the second defendants combined global offer is available for acceptance until 10am, 21 June 2019 and will be deemed to be rejected if not accepted within that time. This offer is made in accordance with the principles in Calderbank v Calderbank (1975) All ER 333 and its derivative authorities and is made without prejudice save as to costs. The first and the second defendants put your clients on notice that if each of them jointly and separately achieve a result which is less favourable to their respective offer and the combined global offer at any final hearing of the matter, each of them intends to rely on this letter in support of a claim for indemnity costs."

The third defendant's settlement offers

1. The first offer by the third defendant was made on 2 November 2017: "We are instructed to make the following offer: 1. The Third Defendant hereby makes an offer to make amends under Div 1 of Pt 3 of the Defamation Act 2005 (NSW). This offer concerns the imputations alleged by the Plaintiffs in the Amended Statement of Claim filed on 29 September 2017. 2. The Third Defendant offers to make a correction in the WeChat group identified in the Amended Statement of Claim of the imputations made or repeated by the Third Defendant, being that the Second Plaintiff is not duly qualified or registered as a medical practitioner, the Plaintiffs were not operating legally as a medical practice, were engaged in fraud and the Second Plaintiff was a criminal, without the requisite skill, who does not maintain tidy, clean and hygienic premises for such practice. 3. The Third Defendant also offers to apologize to the Plaintiffs in the WeChat group. 4. The Third Defendant offers to pay the expenses incurred by the Plaintiffs in the amount ofAU$5000. This offer to make amends is open until 30 November 2017. Our client's offer is separately and additionally made as an offer to settle the proceedings for AU$5000, in accordance with the principles enunciated in Calderbank v Calderbank (1975) 3 ALL ER 333. If the above offer contained in this letter is rejected and the matter is litigated and proceeds to hearing and your client obtained a result that is no more favorable than the offer in this letter, our client will produce this letter to court and seek costs on an indemnity basis from the date of this letter."
2. The second offer was made by third defendant on 12 July 2019: "We refer to your letter of 8 July 2019 and to the second further amended statement of claim (2FASOC). The 2 FASOC suffers from serious defects. It fails to remedy fundamental defects identified in our letter of 17 May 2019. It incorporates new averments, not referred to in your letter, which are irrelevant to any matter in issue and which are liable to be struck out. In order to avoid the costs involved in an application to strike out the 2FASOC, our client invites your client to discontinue her claim against our client on the following basis: 1. Proceedings discontinued as against the third defendant, with no order as to costs; 2. All existing costs orders as between the plaintiffs and the third defendant vacated. This is an open offer. It is open for acceptance until 4:00 pm on 17 July 2019, at which time it will automatically lapse. In the meantime, our client will agree to you sending a copy of your letter of 8 July 2019 to the Court, purely as an aide memoire, provided you supply us by return with the matter referred to at particular (iii) appended to 2 FASOC paragraph 6(f), and a copy of the submissions to which your letter refers. Our client reserves the right to rely upon this letter and the offer it contains, including on the question of cost of any application to strike out the 2 FASOC and/or the costs of the proceedings generally, under the principles set out in Calderbank v Calderbank [1975] 3 All ER 333 (EWCA)"
3. The third defendant sent the following letter on 12 November 2020 concerning the costs of the application for indemnity costs: "We refer to the recent judgment dismissing your clients' claim, with your clients to pay our client's costs. On 2 November 2017, our client offered to settle these proceedings on the basis of a correction and apology to your clients, and payment to them in the amount of $5000. A copy of that offer is attached. That offer was not accepted. Our clients made a further offered to settle the proceedings on 12 July 2019, on the basis that your client discontinue the proceedings as against our client with no order for costs, and all existing costs orders (which our client held against your clients) vacated. A copy of that further offer is attached. That offer was not accepted. On the foregoing basis, and having regard also to the dilatory conduct of the matter by your clients generally, our client should be entitled to have her costs on an indemnity basis at least as from 2 November 2017. Our client therefore invites your clients to agree an appropriate consent order in those terms, namely an order that the plaintiffs pay the third defendant's costs of the proceedings, with such costs to be paid on an indemnity basis from 2 November 2017. If your clients do not agree to that course, our clients will re-list the matter pursuant to the existing liberty to apply and seek an order in those terms. In that case this letter will be relied upon, including for the costs of that application on an indemnity basis. Finally, we note that the second plaintiff has recently listed her property at [redacted] for sale. Our client seeks the second plaintiff's assurance that she will not take any steps towards disposing of or alienating any proceeds of sale, pending payment of our clients' costs. Please advise to the contrary, if your client is not prepared to provide that assurance. Please let us have your clients' response to this letter by close of business on Monday, 15 November 2020."
4. The plaintiff made no offers to either the first or the third defendants. There are no longer proceedings against the second and fourth defendants, but whether this has been achieved by way of settlement or these proceedings have simply been dropped is unknown. The claim of vicarious liability against the first defendant's employer (the second defendant) is characterised in the first offer, correctly, as hopeless. The position of the fourth defendant, who has never participated in these proceedings, is unknown.

Relevant legislation

1. Section 40 of the Act provides: "40 Costs in defamation proceedings (1) In awarding costs in defamation proceedings, the court may have regard to - (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), and (b) any other matters that the court considers relevant. (2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise) - (a) if defamation proceedings 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 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. (3) In this section - settlement offer means any 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), that was a reasonable offer at the time it was made."

The plaintiffs' submissions

1. The plaintiffs state that this application for indemnity costs must be assessed with care, as there has been no adjudication on the merits of the action. I accept this submission, but the costs issues raised in this application must be viewed in accordance with the relevant legislation and principles for awarding indemnity costs where the conduct of the case is relied upon. It is no answer to complaints of unacceptable conduct of proceedings, or compliance with s 40, that the party in default has a strong claim.
2. The plaintiffs first rely on the defendants' own conduct of these proceedings in the Supreme Court, arguing that "the matters on which the defendants have succeeded were not properly identified by the lawyers until this matter was transferred to the District Court" (written submissions paragraph 8). The plaintiffs argue that the defendants have "at least acquiesced in the delays in the Supreme Court" by agreeing to amendments to the statement of claim and by waiting until the proceedings were transferred to the District Court to make their complaints.
3. I do not accept this submission. Every assistance was afforded by the Supreme Court to plaintiffs whose difficulties ranged from suing the wrong defendants (all names had to be corrected or identities changed) to confusion as to what parts of the lengthy WeChat discussion were sued on. Analysis of the judgments of MacCallum J confirms these were the principal difficulties before the court. There would have been little, if anything, that Mr Polden (for the third defendant) or Mr Hu (acting for himself) could have done in such circumstances. Part of the problem was the delay of the plaintiffs in commencing proceedings, which made the obtaining of the transcript of the conversations (which exceeded a day in length) very difficult. No explanation is given for their delay in commencement, or for the errors in the names of all of the defendants.
4. The plaintiffs next argue that there is "a lack of clarity in the law about how to plead complex social media defamation - perhaps until the two judgments in this matter" (written submissions paragraph 9), adding that the pleadings had been "prepared by some of the most experienced defamation lawyers in Sydney".
5. I do not accept this submission. As set out in more detail below, the statement of claim initiating these proceedings failed every pleading test. Nor is the pleading of social media claims difficult. Actions for defamation for publications on social media have been brought in this court since 2013: Mickle v Farley [2013] NSWDC 295. It is now widely accepted that social media and electronic publication claims now make up the bulk of defamation actions. There was no special difficulty in this case. The problem for the plaintiffs was how to plead what was said without including the second plaintiff's refusal to admit she was the doctor in question and her attacks on the others making posts.
6. The plaintiffs next argue that the defendants were just as guilty of delay and that a large amount of irrelevant material was tendered in the hearing which resulted in the dismissal of the claim. In circumstances where both parties did not conduct the motion efficiently, the plaintiffs submit that it would be inconsistent with s 56 - 62 of the Civil Procedure Act 2005 (NSW) to award the defendants indemnity costs.
7. Again, I do not accept this submission. The defendants were faced with discursive pleadings claiming between 5 and 24 causes of action over a three-year period, in a foreign language where issues of translation arose, in circumstances where there was repeated delay by the plaintiffs in complying with timetables, as Mr Polden's chronology attests.
8. I now consider the plaintiffs' submissions in relation to each of the offers made by the first and third defendants. I have dealt with each of these offers separately, and I have considered the position of the first and third defendants separately.

The first defendant

1. Mr Gunning points to the substantial amount paid by his client for legal costs between June and November 2017 and submits that the first offer signally fails to provide for any such sum. He is on less sure ground in relation to the second offer, which includes an offer to pay costs as well as a substantial amount of damages, given the very limited nature of publication. Mr Gunning points to his clients' belief that there were, at least potentially, substantial claims for special damage in terms of lost clientele. I note, however, that the plaintiffs' legal representatives made it clear to Hoeben CJ at CL, when the proceedings were transferred, that these were matters for future investigation. As it happened, the claim for special damages was dropped several drafts ago.
2. As to the offer, the importance of an offer of an apology in defamation proceedings cannot be underestimated. One of the main reasons for the defendant's lack of success in Hyndes was that, while there was an offer to pay financial compensation, the proposed apology (consisting of an offer to publish the plaintiff's point of view as a letter to the editor, while reserving the right to amend that letter) can best be described as paltry. In the present case, there is not only an offer of an apology but also a retraction and an undertaking not to publish in future.
3. There were, in addition, offers not merely of a correction and apology, but to shut down the site after the apology was made. This would have erased the publications. These steps would have inestimable value to any plaintiff in defamation proceedings involving the internet. It was unreasonable of the plaintiffs not to have accepted this offer, particularly given the first and second defendants' limited roles as site administrator and the employer of the site administrator respectively.
4. The second offer contained an apology and retraction and increased the sum on offer to $20,000, plus costs. This is effectively a complete capitulation. It was manifestly unreasonable of the plaintiffs not to have accepted this offer.
5. The third offer does not contain any offer of apology but, since three years had passed since the matters complained of were published, this is hardly surprising. The sum in question is substantial and the plaintiffs would have been well aware of the serious difficulties they were facing in this litigation by that time.
6. The importance of an apology in any Calderbank offer in defamation proceedings is that, if made in proper terms, as would clearly have been the case here, it plays a substantial role in terms of healing the wound. Courts do not have powers to order parties to apologise; such a remedy can only be obtained by a settlement agreement between the parties.
7. It is also relevant that an offer to make an apology was made at the earliest opportunity. While Mr Gunning submits that the plaintiffs did not have sufficient information at that early stage of the litigation, the plaintiffs had had a year to prepare the case before commencement of proceedings, and they must have had some idea of the parameters of the proceedings that they took so long to bring.
8. On Calderbank principles, I am satisfied that it was unreasonable of the plaintiffs to refuse to accept each of the offers made by the first defendant. The first offer was couched in generous terms as to retraction, apology and undertaking, and the share of costs attributable to the first and second defendants at this stage of the litigation was slight. This is in part because the costs of litigation at that time arose principally from the mistakes made by the plaintiffs' legal representatives in the pleadings, but the real reason is that the lion's share of the defamatory remarks were made by the third and fourth defendant, as is pointed out in the final offer made by the first and second defendants.
9. Mr Gunning did not address me as to the difficulties of the first offer having been made by the first and second defendants in circumstances where there appears to have been some form of settlement in relation to the second defendant. In the absence of information to the effect that some form of financial settlement was reached which in some way undermines the value of these offers, I proposed to disregard this factor in the determination of this issue.
10. The first defendant would only be entitled to indemnity costs in relation to the legal were carried out by the solicitors who represented him in the litigation; in practical terms, it would appear that the only legal assistance he has had is that these Calderbank offers were drafted on his behalf by members of the profession. At all other relevant times, he has appeared for himself. He is entitled to such reasonable disbursements as a costs assessor may permit in relation to the conduct of these proceedings on an indemnity basis, and I shall make an order to that effect.
11. The provisions of s 40 in relation to the making of offers would also be a basis upon which each of the offers made would trigger an award for indemnity costs. I note, from the wording of the second offer, that there was no reply at all to the first offer. It is not in dispute that the plaintiffs never made any offer to the first defendant. As noted above, I have no information about the circumstances of termination of the claim against the second defendant, who was brought into the litigation by reason of being the first defendant's employer.
12. Two issues remain. The first of these is whether the first defendant would also be entitled to claim indemnity costs by reason of the plaintiffs' conduct of the litigation. The second is the date from which the indemnity costs should start. I have dealt with both these issues separately below.

The third defendant

1. Mr Gunning points out that the first offer made by the third defendant was sent on 2 November 2017 and purported to be an offer to make amends. That is not possible, as an offer to make amends must be sent within 28 days, whereas this offer was sent a month after the amended statement of claim was served, which was four months after proceedings had started: Mohareb v Booth [2020] NSWCA 49 at [12] - [13]. Leaving aside the interesting argument that if a statement of claim is an offer to make amends, each amended statement of claim changing the publication may arguably be a fresh notice (and that, where the publication has not been properly identified, the statement of claim cannot amount to a concerns notice), that makes no difference to the status of the offer for the purposes of section 40, or as a Calderbank offer under the general law.
2. Mr Gunning submits that the first offer was not a reasonable offer, in that it would have barely covered the filing costs of the statement of claim. While it offered a retraction and apology, the allowance for legal costs and damages was wholly inadequate.
3. This offer, however, contained the element Mr Polden described as "priceless", namely the offer of an apology and retraction in relation to the imputations pleaded. The value of a full apology of this kind and offer retraction of all imputations pleaded is the key to this offer. It was, in addition, made at the earliest opportunity, in circumstances where, despite the delay of the plaintiffs in commencing proceedings, and apology could be made at a time when it still had some potent force. While the legal costs incurred by the plaintiffs at that time were considerable, those costs related almost entirely to their inefficient conduct of the litigation. In addition, the third defendant was one of four defendants and some allowance should be made, in relation to costs, for this fact.
4. Mr Gunning submitted that an offer of this kind can only have real persuasive power, in terms of the Calderbank test, if the reasons for the desirability of the settlement are set out. That may be the case in other areas of the law, but in defamation, where the gist of the cause of action is publication, and offer to correct and apologise for that publication really needs no explanation. Mr Polden submitted that the plaintiffs were, in his words, "hanging out" for damages rather than appreciating the vital importance of an apology and correction in terms of compensating the plaintiffs for the damage done. He submits, and I accept, that the plaintiffs unreasonably failed to accept this early and (in terms of an apology and retraction) generous offer which would have amounted to a public vindication of the plaintiffs to the audience to whom they had been defamed.
5. The second offer, sent on 12 July 2019, is characterised by Mr Gunning as a "walk away offer". It contained no apology or retraction. There is no presumption that when a party does better than a Calderbank offer they are entitled to indemnity costs: Jones v Bradley (No 2) [2003] NSWCA 258 at [8] - [9]. Mr Gunning also pointed out that only five days were given for consideration of this offer.
6. The timing of the second offer is important. The proceedings had been transferred from the Supreme Court to the District Court in circumstances where Hoeben CJ at CL was clearly troubled by the conduct of proceedings and the likely small size of the claim. A special case management hearing heard on 7 May 2019 merely served to confirm those concerns and resulted in the first and third defendants foreshadowing an application for summary dismissal of the claim due to the repeated inadequacies of the pleadings and the plaintiffs' delay generally. This background is adverted to in the opening words of the offer.
7. At the time that the second offer was made, the plaintiffs would have been well aware that the significant problems in terms of identification, proof of publication to third parties and the precise parameters of the publications in question could well result in leave to amend on harsh terms (including appropriate costs orders) or even dismissal of the claim. In circumstances where the parties were preparing for the summary dismissal application, which was to be given a hearing date at the earliest opportunity, the making of a "walk away" offer with only five days for consideration was a good offer for the plaintiffs. It was unreasonable of the plaintiffs to fail to accept this offer, in circumstances where the sorry history of the failure to comply with timetables, practice notes and fundamental pleading requirements should have been a warning of the likely end result of the litigation.
8. I am satisfied that the plaintiffs unreasonably failed to accept each of the offers made by the third defendant.
9. The alternative basis upon which indemnity costs are sought is the conduct of the litigation by the plaintiffs.

The conduct of the litigation by the plaintiffs

1. In practical terms, as both the first and third defendant's complain of the same conduct, it is helpful to consider this aspect of their claim for indemnity costs together.
2. As is set out in more detail in my earlier judgments, these proceedings were conducted in an unacceptable fashion in both this court and the Supreme Court. The statement of claim, filed shortly before the expiry of the limitation period (there is real uncertainty as to the length of time for which these publications remained online), was hopeless on its face. Instead of pleading matters complained of followed by the imputations arising, the plaintiffs selected a series of one-sentence extracts from the 24-plus hours of chat entries in English (without providing any Chinese text) and pleaded a rolled-up series of imputations against each defendant.
3. Over the ensuing years, after seven attempts, the plaintiffs have still not been able to formulate a statement of claim identifying publications read by third parties capable of identifying each of the plaintiffs and explaining how this identification was made. As the chronology provided by Mr Polden demonstrates, provision of these revised pleadings occurred only after failures to comply with timetables, requests for adjournment and general unreadiness by the plaintiffs. Attempts by this court to case manage the pleading problems between 7 May and 28 November 2019 were unsuccessful in encouraging the plaintiffs to comply with orders and simply resulted in a series of orders for costs to be reserved or to be awarded against the plaintiffs.
4. The plaintiffs additionally complicated the case by bringing hopeless applications, such as asserting the third defendant was estopped from seeking summary dismissal of the claim in the District Court because it had not done so in the Supreme Court, an application dismissed with costs.
5. In conclusion, while the plaintiffs have been represented by different practitioners at various times during the litigation, there is nevertheless a consistent pattern of inadequate pleading coupled with inordinate delay. The question is when and in what circumstances conduct of this kind will result in an order for indemnity costs.
6. One of the factors considered relevant in dismissal of the proceedings in Ghosh was that indemnity costs orders had been made, but these had failed to motivate the plaintiffs to provide reasonable pleadings in accordance with timetables. No such indemnity costs order can be pointed to here, but there are other factors similar to that litigation which are of equal concern.
7. As was the case in Ghosh, the pleadings ranged over a wide territory in terms of the number of publications (in this case, ranging from 5 to 24), diffusely pleaded, in circumstances where there were repeated failures to comply with timetables. The proceedings were never able to move past the statement of claim for this reason.
8. Mr Polden submits that the provisions of ss 56 - 62, and especially s 58, enable the courts to make appropriate costs orders, including indemnity costs, where there have been failures of this sort.
9. This manner of conduct of proceedings imposes a crushing burden not only upon the opposing party, but also upon the court. Every case management tool available to the Court has been deployed, but with no success. Parties who conduct litigation in a manner which is delinquent as well as ineffective should, in an appropriate case, be subject to cost sanctions such as indemnity costs. Taking into account the extraordinary history of these proceedings, I am satisfied that this is an appropriate case for such an award.

The date from which the indemnity costs orders should run

1. I am satisfied that it was not reasonable of the plaintiffs to have refused any of the offers relied upon by the first and third defendants.
2. Section 40(2)(b) of the Act entitles the court, where the plaintiff in proceedings has been "unsuccessful", to 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. I consider that this reference to "unsuccessful" is clearly intended to include claims which are struck out and dismissed, as well as proceedings which are determined on their merits. In those circumstances, conformably with the provisions of s 40(2)(b), I proposed to order the costs of the proceedings be assessed on an indemnity basis for each of the defendants, with the additional proviso that the first defendant is only entitled to such reasonable disbursements as may be determined by a costs assessor or by agreement between the parties.
4. Those costs will include the costs of this application, and in this regard I note the contents of the third defendant's letter of 12 November 2020, the text of which is set out above.

Orders 1. The plaintiffs pay the first defendant's legal costs of and incidental to the proceedings on an indemnity basis and, for the period of time for which the first defendant has represented himself, pay his disbursements on an indemnity basis. 2. The plaintiffs pay the third defendant's legal costs of and incidental to the proceedings on an indemnity basis.

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. Decision last updated: 31 March 2021