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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dank v Whittaker (No 5)

Details

AGLC: Dank v Whittaker (No 5) [2014] NSWSC 914
Case: [2014] NSWSC 914
Decision Date: 10 July 2014

CaseChat Overview and Summary

The case of Dank v Whittaker (No 5) involved the defendants seeking an order to consolidate six separate proceedings into a single action or alternatively into three distinct actions. Each party had achieved partial success in their respective cases. The High Court of Australia was tasked with determining whether an order for differential costs would be appropriate in this complex scenario. The defendants argued that the consolidation of proceedings would be more efficient and cost-effective, while the plaintiff contended that the partial successes of each party warranted a differential costs order.

The central legal issue before the court was whether the unique circumstances of partial success in multiple related proceedings justified a differential costs order. The court considered the established principles governing costs in litigation and the factors that should be taken into account when determining an appropriate costs order. The court also examined the nature of the claims and the extent to which the parties had succeeded or failed in their respective actions.

The High Court concluded that a differential costs order was appropriate in this case. The court recognised that the parties had each achieved some measure of success and that the consolidation of proceedings would not necessarily eliminate the need for multiple hearings or determinations. The court found that the traditional approach to costs, which typically favours the prevailing party, did not adequately address the complexities of the case. Instead, the court opted for a differential costs order, which it deemed more equitable given the partial successes of each party. The court's decision was based on the principle that costs should reflect the reality of the litigation and the outcomes achieved by each party.

The final orders of the court provided for a differential costs order to be made, reflecting the partial successes of each party. The court's decision highlighted the importance of considering the unique circumstances of each case when determining the appropriate costs order. This case serves as a reminder that the traditional approach to costs may not always be suitable and that courts must be prepared to adapt their approach to achieve a fair and equitable outcome.

Orders