Diver v Highland FM 107.1 Co-operative Limited

Diver brought defamation proceedings against Highland FM 107.1 Co-operative Limited, claiming that statements broadcast by the defendant caused damage to his reputation. The dispute was heard in the Local Court of New South Wales. Diver voluntarily discontinued the proceedings on the first return date, before any substantive hearing took place. Highland FM applied for costs pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW), seeking an order for Diver to pay the defendant’s costs of the proceeding as a gross sum order.

The court considered whether it was appropriate to award costs on discontinuance in the circumstances of the case. The court found that there were no issues of principle involved in making such an order, as the discontinuance was not due to any fault or wrongdoing by the defendant. The court further noted that the amount of costs sought by Highland FM was reasonable and proportionate to the work done up to the date of discontinuance.

Accordingly, the court ordered Diver to pay Highland FM’s costs of the proceeding in the sum of $3,500. The payment was to be made within 28 days of the order. The court emphasised that the order was not intended to set a precedent for any future cases with different facts or circumstances.