AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (Costs)

[2010] NSWSC 1519

CITATION:	AMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors (Costs) [2010] NSWSC 1519
HEARING DATE(S):	9 December 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	9 December 2010
DECISION:	Plaintiffs pay 90 per cent of defendants' costs of the proceedings, save insofar as any special costs order otherwise provides.
CATCHWORDS:	COSTS – where plaintiffs fail on most claims but succeed on one minor claim – apportionment of costs
CATEGORY:	Consequential orders
PARTIES:	AMI Australia Holdings Pty Ltd (first plaintiff) Advanced Medical Institute Pty Ltd (second plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Rita Almohty (second defendant) Kelly Burke (third defendant) Kate McClymont (fourth defendant)
FILE NUMBER(S):	SC 09/289188
COUNSEL:	Mr M Green w Dr E Peden (plaintiffs) Mr D Sibtain w Mr M Polden (first, third & fourth defendants)
SOLICITORS:	Bruce Stewart Dimarco (plaintiffs) TresCox Lawyers (second defendant) Johnson Winter & Slattery (first, third & fourth defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 9 December 2010

2009/289188 AMI Australia Holdings Pty Limited (ACN 095 238 645) v Fairfax Media Publications Pty Limited

JUDGMENT (ex tempore)

1 So far as costs are concerned, there were three main groups of issues in the proceedings.

2 The first was the claim of breach of confidence in respect of the subject matter contained in the five imputations. On that claim, the plaintiffs totally failed.

3 The second was the claim of injurious falsehood in respect of the five imputations. While the plaintiffs succeeded in establishing that, in substance, the imputations were false, they ultimately failed, because they did not establish malice – which, of course, as the principal judgment describes, is an essential element of the cause of action. The plaintiffs’ position in that respect – having established falsity, but not malice - is not dissimilar to that of a plaintiff in a negligence case who establishes breach of duty but does not prove causation, and therefore fails. In my view, the usual result in that type of situation is that the plaintiff is regarded as having failed, and bears the costs.

4 The third was the claim for return of the patient records and other confidential documents of AMI. In that respect, the plaintiffs have succeeded but, in terms of time and effort, it occupied a very small part of the case.

5 In addition, some considerable time was taken during the case by a series of unsuccessful attempts on the part of the defendants to adduce expert evidence from Professor Day.

6 In principle, the defendants having succeeded on all but a relatively minor issue, they are entitled to their costs, but I do not think the plaintiffs should have to bear the defendants’ costs of the issue on which the plaintiffs succeeded, nor of the defendants’ unsuccessful attempts to adduce Professor Day’s evidence.

7 It is preferable, in this type of situation, to take a broad axe approach to the apportionment of costs, rather than making orders for costs in respect of discrete issues, which complicates the process of assessment. Adopting such an approach, and bearing in mind that the plaintiffs succeeded on the minor issue to which I have referred, and that the costs were increased by the unsuccessful attempts to introduce Professor Day's evidence, a fair and reasonable outcome is that the plaintiffs should pay 90 per cent of the defendants' costs of the proceedings, save insofar as any special costs order otherwise provides.

8 I order that the plaintiffs pay 90 per cent of the defendants' costs of the proceedings, save insofar as any special costs order otherwise provides.

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