Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd (No 2)

In the case of Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd (No 2), the plaintiff, Mr Baboolal, sued the defendants for defamation. The defendants partially succeeded in an application to strike out 35 imputations that were part of the defamation action. Both parties sought an order for the other to pay their costs related to the application, or alternatively, 75% of the costs.

The legal issues before the court were whether the general rule of costs following the event should apply, and if so, whether the circumstances warranted a departure from this rule. The defendants argued for an order that costs should follow the event, whereas the plaintiff argued for a different proportion of costs. The court had to balance the success of the defendants in their application with the overall costs incurred by both parties.

The court found that the defendants were only partly successful in their application to strike out the imputations, and that the plaintiff was successful in relation to the majority of the claims. Given the mixed outcome of the application, the court decided that the general rule of costs following the event should not apply in its entirety. Instead, it was appropriate to order the plaintiff to pay 50% of the defendants’ costs of and incidental to the amended application. This decision balanced the partial success of the defendants with the overall outcome of the application.

The court ordered that the plaintiff pay 50% of the defendants’ costs of and incidental to the amended application, to be assessed or otherwise agreed. This order recognised the mixed outcome of the application while also considering the relative success of both parties.