Dank v Whittaker (No 5)

[2014] NSWSC 914

Supreme Court

New South Wales

Medium Neutral Citation:

Dank v Whittaker (No 5) [2014] NSWSC 914

Hearing dates:

7 July 2014

Decision date:

10 July 2014

Before:

McCallum J

Decision:

Costs of the defendants' application to consolidate proceedings ordered to be costs in the cause

Catchwords:

COSTS - application by defendants to consolidate six proceedings into one and alternatively into three - each party enjoying partial success - whether differential costs order appropriate

Legislation Cited:

Defamation Act 2005, s 23, s 35

Cases Cited:

Dank v Whittaker (No 4) [2014] NSWSC 732
Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37

Category:

Costs

Parties:

2013/157114
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
(proceedings discontinued as against second defendant)
Dr Tricia Kavanagh (third defendant)
Darren Kane (fourth defendant)
Rebecca Wilson (fifth defendant)
James Hooper (sixth defendant)
Josh Massoud (seventh defendant)

2013/157118
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)

2013/170487
Stephen Dank (plaintiff)
Mick Carroll (first defendant)
Phil Rothfield (second defendant)
Rachel Givney (third defendant)

2013/170493
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)

2013/184586
Stephen Dank (plaintiff)
Paul Whittaker (first defendant)
Yoni Bashan (second defendant)

2013/184595
Stephen Dank (plaintiff)
Nationwide News Pty Ltd (defendant)

Representation:

Counsel:
2013/157114:
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (first, fifth, sixth and seventh defendants)
(third and fourth defendants not appearing on motion)

2013/157118
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (defendant)

2013/170487:
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (first and second defendants)
(no appearance for third defendant: not yet served with originating process)

2013/170493:
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (defendant)

2013/184586:
K Smark SC (plaintiff)
T Blackburn SC with L Barnett (first and second defendants)

2013/184595
K Smark SC (plaintiff)
T Blackburn SC, L Barnett (defendant)
Solicitors:
2013/157114
Cambridge Law (plaintiff)
Ashurst Australia (first, fifth, sixth and seventh defendants)
Kennedys (third defendant)
Wotton & Kearney (fourth defendant)

2013/157118
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

2013/170487:
Cambridge Law (plaintiff)
Ashurst Australia (first and second defendants)

2013/170493:
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

2013/184586
Cambridge Law (plaintiff)
Ashurst Australia (first and second defendants)

2013/184595
Cambridge Law (plaintiff)
Ashurst Australia (defendant)

File Number(s):

2013/157114 2013/157118 2013/170487 2013/170493 2013/184586 2013/184595

Publication restriction:

None

Judgment

1. HER HONOUR: Stephen Dank commenced six proceedings for defamation arising out of the publication of numerous articles in The Daily Telegraph. On 4 June 2014, on the application of the defendants, I made orders consolidating the six proceedings into three: Dank v Whittaker (No 4) [2014] NSWSC 732. This judgment determines the costs of that application.

1. The defendants' notice of motion sought an order that the six proceedings be consolidated into one, or alternatively into three, and alternatively an order that all proceedings be tried at the same time. I deferred determining whether all proceedings should be tried at the same time (primary judgment at [77]). I rejected the application to consolidate all six proceedings into a single proceeding (primary judgment at [40]) but acceded to the application to consolidate the six proceedings into three.

1. The defendants submit that they were successful in the application and should have their costs in accordance with the principle that costs follow the event. They further submit that their entitlement to costs is fortified by the fact that the basis on which they were successful entailed a finding that the institution of six proceedings amounted to an abuse of process, in effect contending that they should not be left to bear their own costs of moving to prevent an abuse of process.

1. Mr Dank submits that this is a case in which, consistently with the general principle that costs follow the event, a differential award of costs can properly be made to reflect the fact that each party was partly successful and partly unsuccessful. On that basis, Mr Dank submits that the costs of the application should be costs in the cause.

1. As to the submission that the institution of six proceedings amounted to an abuse of process, Mr Smark SC, who appears for Mr Dank, questioned whether that was a correct reading of the primary judgment.

1. It may be accepted that the contention that the institution of six separate proceedings amounted to an abuse of process was an express basis for the defendants' application to have the proceedings consolidated. Section 35 of the Defamation Act 2005 limits the damages that may be awarded for non-economic loss "in defamation proceedings". The defendants contended that the proceedings had been structured as they had in order to avoid the application of that limit (or "cap", as it is often called). At the hearing of the application Mr Smark frankly conceded that the six proceedings had been structured "with an eye to the operation of the cap". He submitted, however, that there was no vice in that approach.

1. I did not expressly hold that the institution of six proceedings amounted to an abuse of process. I said that was the view I would have reached without regard to authority (primary judgment at [65]). However, I acknowledged that, in Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37, the Court of Appeal of the Supreme Court of the Australian Capital Territory held otherwise. The majority in that case endorsed the view that, where two proceedings have been commenced in respect of like defamatory matter, unless the second proceedings fall foul of s 23 of the Defamation Act, the prosecution of both proceedings will not amount to an abuse of process: at [71] per Katzmann J; Burns J agreeing at [47].

1. The basis on which I ultimately determined the application before me was that, whether or not the institution of the six proceedings amounted to an abuse of process, it would in the circumstances of the present case be an abuse of process to have them determined separately, since the consequence would be to multiply the cap and so defeat the objects of the Defamation Act. Although, in reaching that conclusion, I expressly followed the approach taken by Higgins CJ in his dissenting judgment in Cummings, I took that approach only in the circumstance that I considered Cummings to be distinguishable from the present case.

1. Strictly speaking, therefore, Mr Smark is correct in saying that I did not hold that the institution of six proceedings rather than three amounted to an abuse of process. However, I did accept that it would be an abuse of process to allow Mr Dank to have the six claims each determined separately (so as to swell the limit of damages for non-economic loss), which was his admitted object in structuring the proceedings as he did.

1. Whether it follows that the defendants should necessarily have their costs of the application is another question. I do not think it does. It is a factor which fortifies the argument for costs of "the event", but the fact remains that there was a discrete application to have the six proceedings consolidated into one. That was an ambitious argument and it was easily rejected (primary judgment at [40] to [46]). Mr Dank was perfectly entitled to bring three sets of proceedings and their consolidation into one was properly resisted.

1. In all the circumstances, I think there is force in Mr Smark's submission that a differential analysis of "the event" is warranted and an order that the costs be costs in the cause is appropriate.

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