Gee v Jamieson

[2023] NSWDC 123

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gee v Jamieson [2023] NSWDC 123

Hearing dates:

27 April 2023

Date of orders:

27 April 2023

Decision date:

27 April 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 57

Catchwords:

CIVIL PROCEDURE – defamation suit – particulars include imputations that plaintiff was subject of charges concerning professional conduct in Malaysia – justification and contextual truth defences – subsisting disciplinary process against the plaintiff in Malaysia including an appeal to the Malaysian High Court - defendant’s application for interim stay of local proceeding

CONFLICT OF LAWS – consideration of adequacy of evidence of processes for appeal from a decision of a professional disciplinary appeal in a foreign country – whether the presumption that foreign law is the same as to that of the forum may be resorted to when considering how powers in the Malaysian High Court on an appeal from a disciplinary matter is applicable

COSTS – defendant’s application for discovery in relation to disputed categories – plaintiff’s opposition to application dropped close to hearing – whether the defendant should obtain costs order for legal expenses wasted in prosecuting the procedural application

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 67

District Court Act 1973 (NSW) ss 67, 156

Medical Act 1971 (Malaysia) s 31

Cases Cited:

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

Forge v ASIC (2004) 213 ALR 574

Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378

Neilson v Overseas Projects Corporation (2005) 223 CLR 331

Re Minister for Immigration and Ethnics Affairs & Anor; Ex parte Qin (1997) 186 CLR 622

Texts Cited:

C Dickens, David Copperfield (1850)

J R S Forbes, Disciplinary Tribunals (2nd ed, 1996, Federation Press)

M Davies, A S Bell and P L G Brereton, Nygh’s Conflict of Laws in Australia (8th ed, 2010)

Category:

Procedural rulings

Parties:

Mr T Gee
Ms M Jamieson

Representation:

Counsel:
Mr T Senior for the plaintiff
Mr D Helvadjian for the defendant

Solicitors:
Holding Redlich for the plaintiff
David Legal for the defendant

File Number(s):

2021/00230391

Publication restriction:

Nil

REASONS FOR JUDGMENT

Introduction

1. This defamation suit was commenced by the plaintiff, a gastric and bariatric surgeon based in Kuala Lumpur, Malaysia, against the defendant, who works in various capacities, including a medical travel facilitator, the operator of a business known as ‘Absolute Bariatrics Asia and Absolute Beauty Asia’ and who relevantly operates a Facebook page for that business. The plaintiff and defendant had had a business relationship for a period, whereby the defendant introduced Australian patients to travel to Kuala Lumpur for surgery performed by the plaintiff.

2. On 5 June 2021, the defendant uploaded a post on the said Facebook page. It was titled ‘Doctor of Deception??? – Tikfu Gee’. The plaintiff contends that the post was defamatory and sues for damages, both general and aggravated damages (the latter based upon allegedly knowing the falsity of the imputations). Some (but not all) of the alleged imputations are:

• the plaintiff is a dishonest doctor;

• the plaintiff deceives his patients;

• the plaintiff is guilty of charges of disrespectful behaviours in a medical context and endeavouring to force unnecessary medical procedures;

• the plaintiff engages in professional misconduct;

• the plaintiff was suspended by the Health Ministry in Malaysia;

• the plaintiff engaged in conduct unbecoming of a registered medical practitioner.

3. The defendant denies that the matter complained of is defamatory and takes issue with whether the pleaded imputations could be defamatory (although she admits that the plaintiff was identified by the publication). She also raises defences of justification and contextual truth and relies upon certain matters in mitigation.

4. In relation to the contextual truth defence, the defendant cites the following imputations:

“v. the plaintiff has chargeable findings against him of disrespectful behaviours in a medical context and endeavouring to force unnecessary medical procedures.

vi. the plaintiff conducted clinical trials whilst charged with misconduct; and

vii. the plaintiff conducted clinical trials whilst suspended.”

5. Further, very extensive, particulars (BB – AAA) of the contextual truth defence are set out in Schedule A to the Amended Defence. Those particulars relevantly traced the processes of complaint about the respondent being filed with the Medical Council (in November 2016), the initial review by a Preliminary Investigation Committee, the Council’s decision to proceed with a disciplinary proceeding and to hold an inquiry, the particularising of charges that the respondent had to answer, facility for the respondent to be ‘heard’ (by providing a defence to charges, the supply of documentary evidence and right to attend the hearing), the hearing itself and, perhaps most materially, the Council’s dismissal of the charges (in June 2022).

6. Some of the particulars of mitigation include the posited substantial truth of the contextual imputations and particulars of that defence.

7. The proceeding commenced on 12 August 2021.

8. For a time, there was a dispute about discovery of a small number of categories proposed by the defendant but, subject to the question of costs, which I will return to later in these reasons, that dispute has fallen away. The dispute now requiring the Court’s adjudication is whether the proceeding should be temporarily stayed.

The stay application

The evidence

9. The defendant, who I will henceforth refer to as the applicant, relies upon an affidavit of her solicitor, Sando Rashed, sworn 24 March 2023.

10. She deposed, on the basis of information she received from Professor Geoffrey Williams, to a subsisting proceeding in the High Court of Malaysia involving Professor Williams (as an appellant), the plaintiff (as a First respondent to the Malaysian proceeding) and the Malaysia Medical Council (‘MMC’) (as a second respondent to the Malaysian proceeding).

11. Ms Rashed was informed by Professor Williams that certain charges had been brought by the MMC against the plaintiff concerning his treatment and dealings with a patient (Nur Muhammed Tajrid bin Zahalan) and that patient’s family in July 2015 following a complaint which Professor Williams had initiated. Prof Williams was described in the defendant’s submissions as a friend to the patient. To paraphrase, charges related to the plaintiff’s alleged: ‘arrogant, rude and disrespectful’ behaviour towards the patient and the patient’s family; insisting, without justification, upon the patient undertaking an endoscopy procedure; failing to communicate treatment options; and on the basis of all of these circumstances, ‘infamous conduct in a professional respect’.

12. These charges had been dismissed by the MMC, but Prof Williams indicated that he had appealed in November 2022 and that appeal is set down for hearing on 27 July 2023. Prof Williams anticipates that the High Court in Malaysia might hand down its decision that day. If the appeal is successful, the Court might conceivably impose certain disciplinary sanctions itself.

13. Ms Susan Goodman, partner of the firm representing the plaintiff, gave evidence of her own belief and understanding about the status of these Malaysian proceedings, sourced in information she received from a Senior Associate at a law firm in Kuala Lumpur (Ms Aw Ee Va). The account in her affidavit differs in certain respects from the account indirectly supplied by Prof Williams.

14. However, in the light of what was written in the applicant’s written submissions in reply, Counsel for the respondent did not read parts of her affidavit. Materially, the respondent no longer maintained the description of the appeal as being of the nature of ‘judicial review’. Counsel clarified that there was a avenue for judicial review (a matter adverted to by the applicant in Schedule A to her defence at particular XX), but Prof Williams had chosen the path of an appeal. Further, I understood the respondent to accept, at least as a possibility, that the Malaysian High Court might under its power to make ‘directions’ impose disciplinary sanctions.

15. Notwithstanding this modification of the respondent’s position, Counsel for the respondent maintained that having regard to the nature of the grounds of appeal agitated, the appeal might be regarded as a de facto application for judicial review, raising as it apparently did, complaints about a denial of procedural fairness by the MMC.

16. Otherwise Ms Goodman acknowledged that the proceeding will be heard on 27 July 2023, on which day, she believes that those objections will be heard. On the basis of information, Ms Goodman believes that the High Court might remit the matter to the MMC assuming other matters fall in favour of Prof Williams. Further, the plaintiff is not confident that the High Court would hand down its decision after the hearing.

17. Ms Goodman also raised as an additional concern that the Malaysian High Court’s decision will not finalise the disciplinary process. She contemplated that if Prof Williams is dissatisfied with the outcome, he may appeal further to the Court of Appeal or the Federal Court. If the matter is remitted to the MMC, it is uncertain how long that would take to decide the matter remitted. If Prof Williams does not succeed, he may seek to appeal to the Court of Appeal by leave, or as of right. As matters currently stand, however, the plaintiff has not been found guilty of any charges.

The parties’ arguments

The applicant’s submissions

18. The applicant invokes s 67 of the Civil Procedure Act 2005 (NSW) (CP Act), but seeks a stay of finite duration, being only (from this point) 3 months, which it contends is enough time for the decision of the Malaysian High Court to be delivered and for the parties to consider their position thereafter. Alternatively, the stay might subsist until a date when a case management hearing can be conducted to report on the Malaysian proceeding with the opportunity of seeking a further extension.

19. The issue is whether it is desirable for one proceeding to conclude first. The respondent takes no issue about the Court’s power under s 67 of the CP Act and, indeed, cited s 156 of the District Court Act 1973 (NSW) as an alternative source of power.

20. The applicant contends that the Malaysian proceeding is far more advanced than this proceeding. Further, given the cross-over of issues, a temporary stay would be desirable. The Malaysian proceeding relates to whether the plaintiff was guilty of charges and it is anticipated that the Malaysian High Court could make factual findings relevant to her justification and contextual truth defences, and mitigation. It could impose disciplinary sanctions itself. The contours of the case in this Court could at least alter if the Malaysian High Court makes determinations relevant to justification and mitigation of damages; including, without limitation, abandonment of certain imputations and giving impetus to settlement discussions more generally.

21. It is said that case-management objectives of proceedings in this Court favour the grant of a temporary stay. Paradoxically, a stay of this proceeding to enable the Malaysian proceeding to proceed first might effectively expedite the case, since the potential range of results might mean that issues in this proceeding fall away. That has spin-off effects in reducing the cost to the parties and lead to greater efficiencies in the disposal of the Court’s business.

22. The applicant recognises some prejudice to the respondent by dint of some period of delay. But that does not outweigh the benefits to all parties (and the Court) from a short temporary stay.

The respondent’s submissions

23. The respondent emphasised that the MMC had dismissed charges against the plaintiff and noted that the applicant’s argument, as essentially distilled, came down to the possibility that the High Court might determine that charges were proven and sanction the plaintiff. There were several answers to that.

24. First, the matter complained of was published prior to any determination by the MMC and to the extent that the applicant’s defences (and plea in mitigation) refer to the matters in Malaysia, they concern or are primarily founded upon, charges dismissed in June 2022. As matters stand, the plaintiff has never been found guilty of any charges.

25. Secondly, if the applicant was willing to rely upon particulars founded upon a complaint against the respondent which was dismissed, there is no real utility in awaiting a decision by the Malaysia High Court. The High Court proceeding primarily centred by complaints by Prof Williams (not the actual complainant patient) about procedural fairness. The respondent has taken some objections and those objections and, potentially, the application as a whole will be heard on 27 July. But it is uncertain when the High Court will hand down its decision and there are various permutations of what might occur, including the exercise of potential appellate rights.

26. The progress in the Malaysian proceeding appears slow. The complaint against the respondent was made in November 2016 in respect to matters occurring in July 2015. It was not until June 2022 that the MMC made its decision. This proceeding relates to a Facebook post of June 2021.

27. As the applicant had acknowledged, the respondent commenced his proceeding in this Court to vindicate what he regards as damage to his reputation. By doing so, he and the applicant must take this Court’s procedures, including procedural decisions to progress the matter to hearing, as they find them, including the case management objectives and imperatives underpinning those procedures.

28. The respondent does not accept that a temporary stay could facilitate the ‘overriding purpose’ and the efficient and timely disposal of proceedings. Counsel explained, from the Bar table (but without contradiction from the applicant’s Counsel) that the proceeding has not advanced very readily since December last year, when the parties began to focus on an informal settlement conference.

29. The temporary stay application was a delaying tactic and should be refused and the parties should get on with undertaking the usual pre-trial processes.

The applicant’s submissions in reply

30. In her submissions in reply the applicant raised matters about the nature of the Malaysia proceedings which should preferably have been made in her submissions in chief; raising as it did matters of foreign law. In fairness, the applicant acknowledges that differences between the two parties as to the nature of the Malaysia proceedings should not be decisive as to the merits of the current application.

31. The applicant argues that the nature of the proceeding in the High Court is an ‘appeal’ and not an application for judicial review. Reference was made to s 31 of the Medical Act 1971 (Malaysia). That provision was expressed in the following terms:

“31(1) Any person who is aggrieved by any order made in respect of him by the Council in the exercise of its disciplinary jurisdiction may appeal to the High Court, and the High Court may thereupon affirm, reverse or vary the order appeal against or may give such directions in the matter as it thinks proper; the cost of the appeal shall be in the discretion of the High Court.”

32. The applicant argues that Prof Williams is (jointly with the patient) appealing against the order by the Council dismissing the charges against the plaintiff. (What standing that Prof Williams had to make in conjunction with the patient to the MMC, or alternatively to the Malaysian High Court, on appeal was not explained). According to s 31, the High Court might reverse that order and make any further direction which, she submits, could extend to its imposing disciplinary sanctions against the plaintiff.

33. The applicant also referred to the content of the Malaysia Medical Regulations 1974, which, she argued, indicates that once a complaint had progressed beyond a committee stage, it would then form the basis of the charges taken on by the MMC and levelled against the person who is the subject of the complaint, in the inquiry the MMC which it is empowered to exercise in its disciplinary jurisdiction.

34. The applicant argues that it is apparent from his written submissions that the respondent does not deny that: the Malaysian proceeding concerns factual matters relevant to a significant part of the current proceeding; that the hearing will occur on 27 July 2023 and by the conclusion of that hearing, the parties are likely to be aware of the outcome of the hearing or at least whether the High Court will reserve its decision. She argues that a short temporary stay is desirable since even if the respondent correctly apprehends that the most that the High Court (should it allow the appeal more generally) will do will be to remit the merits of the dispute back to the MMC, then the findings of the MMC will be even more important and relevant to the scope of disputation in this Court. If, by contrast, the applicant’s expectation is vindicated, so that the High Court does determine the case on the merits (such as by making findings or imposing sanctions upon the respondent), the dispute can be significantly narrowed.

35. The applicant also defends herself against criticism made against her by the respondent about relying upon charges, prior to their determination by the MMC, in her particulars. She says that when the respondent first filed the proceeding, the charges in Malaysia had not been determined.

Consideration

36. I acknowledge that, as with all procedural applications, the question depends upon what most appropriately accords with the dictates of justice.

37. It is a tempting procedural course to accept the applicant’s position, of imposing a stay at least until such time as the position becomes clearer on 23 July. That would, in effect, only amount to a delay of three months. But there is a real possibility that the parties would return to this Court for an update shortly after that date only to be told that the position continued to remain uncertain. In the meantime, if the stay was granted now, nothing further would have been done to meaningfully advance the proceeding since at least the current application was first muted (which was no later than 12 April 2023).

38. When the matter was raised with the parties at the hearing about what steps the parties expect will occur in the next three months if the temporary stay was not granted, the applicant’s response was that there was discovery and interrogatories. The respondent accepted this, although his Counsel emphasised that having regard to the current pleadings, the scope of discovery (at least) would not likely be affected by what the Malaysian High Court might do.

39. As indicated only relatively few snippets of the nature of the proceedings in the Malaysian High Court was the subject of proper evidence. The strongest evidence was the statutory provision and regulations referred to by the applicant in her submissions in reply. There was no evidence, beyond a statement as to what the Malaysian High Court is empowered to do on appeals from decision of the Medical Council, as to what its practice has usually been on such appeals, in proceedings of the relevant kind, on the questions whether that Court is likely to make determinations on the merits of disciplinary charges; and also the likelihood of its imposing of disciplinary sanctions itself. It was a generous concession by Counsel for the respondent (made for the purpose of the application) that the Malaysian Court might, under its power to make ‘directions’ impose such sanctions.

40. Doing the best that the Court can in the circumstances, and emphasising that I am expressing no final views on the powers or practices of a foreign court under foreign law, nevertheless, it appears to me appropriate to proceed on the general presumption^[1] that the Malaysian High Court would likely follow the practice of Australian courts, on appeals, subject to evidence of the foreign law to the contrary. Counsel for the applicant did not argue against that course when I raised it with him in argument. In doing so, I accept that some care needs to be exercised, acknowledging that the presumption may be inapposite in areas of complex and technical law^[2] . But it does not strike me that the way in which a Malaysian Court might deal with appeals from a disciplinary panel falls into this category; noting that Malaysia was also colonised by the British up to the 1960s and our countries’ shared common law inheritance ^[3] . This Court is fortified in doing so given the not dissimilar manner in which complaints against Malaysian medical practitioners proceed (as set out in the particulars of contextual truth in Schedule A to the Defence, and summarised at paragraph 5 above) and how they proceed in this state.

    1. Neilson v Overseas Projects Corporation (2005) 223 CLR 331

    2. M Davies, A S Bell and P L G Brereton, Nygh’s Conflict of Laws in Australia (8th ed, 2010) at [17.45]

    3. This is not to overlook the significance of Islamic law or what is known as ‘syariah’ (sharia law) to the current system of law in Malaysia

36. There is unchallenged evidence (indirectly) from the foreign lawyer engaged by the respondent in this application (Aw Ee Va) to the effect that Professor Williams and the patient are “primarily” contending that the MMC denied procedural fairness (Goodman, par 5(b)), and also that whatever the Malaysian High Court decides may not turn out to be the last word, with the parties having further rights of appeal (Goodman, par 5(n)). From this distance, to any Australian lawyer or Judge, this would not appear to be a promising starting point for an argument founded on the expectation that the outcome of what occurs in the Malaysian proceeding will, in short and medium term, not only reverse the MMC’s decision to dismiss the charges against the respondent but, in addition, would involve the Court substituting its own factual findings (sustaining the charges) and thereafter directly impose its own disciplinary sanctions (assuming the latter would be encapsulated within the concept of “direction” contained in s 31(1) of the Medical Act). As to this last matter, it might be thought, to the mind of an Australian lawyer, that the Malaysian High Court would prima facie prefer a specialist disciplinary Council to have first considered appropriate sanctions on the premise that the charges were sustained. At any rate, in New South Wales, the customary approach in a disciplinary tribunal^[4] is that the determination of ‘liability’ (whether the charges are established) is usually separate to and precedes the hearing and determination of the question of appropriate penalties^[5] so that the professional knows what charges have been made out before making submissions on penalty

    4. Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 (“Hall”); see also J R S Forbes, Disciplinary Tribunals (2nd ed, 1996, Federation Press), [12.97]

    5. This approach is also applied in regulatory civil penalty proceedings: see Forge v ASIC (2004) 213 ALR 574 per McColl JA (Handley and Santow JJA agreeing) at [423] where her Honour adopted the procedure for a split hearing from Hall. (The Court of Appeal’s decision in Forge was considered in the High Court but not on this point, in Forge v ASIC (2006) 229 ALR 223)

37. On the basis of the evidence, which, for the applicant, rises no higher than Professor Williams’ beliefs (referred to at Rashed, 5(f) & (g)), there is a very weak evidentiary foundation for the supposition that the Malaysian High Court will not only hand down its decision on 27 July 2023, but do so in a way involving its: (a) rejection of the respondent’s procedural objections to the appeal; (b) determination of factual findings contrary to those reached by the MMC sufficient to encourage the High Court to reverse the Council’s decision and (c) its immediate and direct imposition of disciplinary sanctions against the respondent without further hearing. Further, if the matter does go back on remittal to the MMC, the circumstance that, in the first instance, the complaint was initiated in November 2016 but determined by the Council in June 2022, does not, with great respect, instil confidence that any remittal proceeding will be expeditiously determined in Malaysia. Matters will be even slower if the dissatisfied party from the decision of the Malaysian High Court invokes rights of appeal. The Court may then confront the spectre that the Malaysian High Court delivers a decision which alters the status quo, the parties in this proceeding react to that decision in some way – most obviously in the pleadings, only for a decision to be subject to further appeal up the judicial hierarchy in Malaysia which might prompt the parties to react again in this proceeding. All of this could take years.

38. Theoretically, there is some attraction to the applicant’s ‘wait and see’ argument on the basis that there may be some potential savings in time and cost in this proceeding should there ever be a redetermination on the charges on the merits. But on the basis of the evidence before the Court, in my opinion, the benefits are illusory. The prospect appears very remote, at this point in time and I am not persuaded that this proceeding should presently come to a halt in anticipation of a contingency that may never arise or, if it does arise, is too uncertain as to when it will arise. It is possible that this position may change, and further events in the disciplinary proceeding, including what occurs in the High Court on 27 July 2023, may occur which influence how the Court case manages this proceeding, but that point has not yet been reached.

39. In the meantime, the delay that has bedevilled this proceeding to date will continue if even a temporary stay is imposed. This proceeding is fast approaching 2 years of age. Acknowledging that some of that delay may be attributable to the parties’ taking some time to try to resolve the proceeding, there have been multiple interlocutory disputes in addition to this one and other directions hearings and still, it appears that the better part of the pre-hearing steps required to be taken by the parties is yet to be completed. It is a matter of significance that both sides acknowledge that the plaintiff is entitled to expect a prompt hearing, insofar as that is fair to both parties and it is also a matter of significance that the applicant has chosen to rely upon matters, being only the bringing of charges – not final findings - in a disciplinary proceeding in a foreign country which were dismissed but whose processes for review and appeal are not exhausted. It was aware of this since June 2022. Since this proceeding began, the respondent’s position has actually improved to the extent that there has been an actual dismissal of charges brought against him by a disciplinary council.

40. Further, although the applicant’s Counsel spoke of looming discovery and interrogatories in the (three month) period of the temporary stay, he did not persuade me that, on the state of the pleadings, the nature of the discovery requirements (consensually agreed to by the parties) will materially alter even if the Malaysian High Court accedes to all of what Prof Williams seeks from it at the hearing on 23 July, such that it can confidently be predicted that there is a real possibility of wasted expenses, even assuming that all goes as well as what Professor Williams hopes it will in the Malaysian High Court.

41. On balance, it seems to me that there is no convincing reason for the grant of a stay for a temporary period beyond the applicant’s hope, like Micawber ^[6] , that something might happen in the Malaysian High Court on 23 July that will materially change the contours of this litigation. By these reasons, I have concluded that this prospect is very remote and that further, such determination as it may make on that date may still not bring about finality to the dispute in Malaysia. This is in circumstances where the applicant, with her eyes wide open, was prepared to mount a contextual truth defence substantially on the basis of disciplinary charges being brought against the respondent; with the attendant risk, which has since materialised, that such charges may be dismissed. I am not persuaded that the dictates of justice favour the stay.

    6. C Dickens, David Copperfield (1850)

42. The notice of motion, insofar as it concerns the stay application, is dismissed. Subject to hearing from the parties, I am inclined to order that the applicant/defendant is to pay the respondent/plaintiff his costs of that application.

43. As is implicit in my reasoning earlier, the prospect of what the Malaysian High Court might do was not a convincing basis for the current application. I see no reason why costs should not follow the event.

Costs on the discovery application

49. A timetable for discovery was ordered (by Gibson DCJ) as far back as 17 December 2021. This proceeding first came to my own attention for the first time on 12 April 2023, when my Associate was informed that there was a dispute about discovery. The dispute was at least on going as at 23 March 2023 when the defendant, as applicant for discovery, prepared written submissions in reply, in response to the plaintiff’s submissions on that subject. But in the plaintiff’s written submissions, predominantly prepared for the stay application, dated 19 April 2023, Counsel for the plaintiff indicated that he did not press his client’s objections to the disputed categories of discovery.

50. The defendant seeks her costs thrown away, on an indemnity basis, by reason of the plaintiff’s maintenance, for a significant period, of opposition to disputed discovery categories. The defendant pinpoints 15 February 2022 as the date in which the plaintiff first indicated opposition to what ultimately became the disputed categories, being categories 3 and 4.

51. She points to the volume of correspondence exchanged between the parties, and her need to prepare written submissions up until the point when, at the ‘last possible juncture’ the defendant finally abandoned that opposition.

52. The plaintiff says that the question of discovery had been ‘parked’ for a long period, to enable settlement talks to occur, but were revived in March this year. The plaintiff’s Counsel submitted that it altered its position on discovery simply to get the case moving again, intimating that by doing to, he was not to be taken as accepting the correctness of the defendant’s position. As a fallback, he submitted that if any costs are to be awarded, they should only be awarded to compensate the defendant for written submissions prepared for discovery.

53. In reply, Counsel for the defendant referred to the consistency of the defendant’s position in relation to the disputed categories.

54. It is a basic axiom of civil litigation that Courts will not lightly make costs orders about proceedings that have been compromised or at least resolved (otherwise then by adjudication) by the parties without curial adjudication^[7] . That, in my view, applies all the more strongly to procedural applications, where Courts encourage and, indeed, rely upon parties to try to resolve interlocutory disputes consensually and to the extent possible, avoid ‘satellite’ disputes^[8] . If that was not so, parties would be incentivised to run unmeritorious arguments for fear that if they compromise, they may still be subject to an order for costs. This Court would be inundated with even more ‘satellite’ costs applications than it already receives. A regrettable consequence is that, unavoidably, parties may incur costs of interlocutory disputes, up to the point where they are compromised or resolved which cannot be compensated for. In many interlocutory disputes, however, the quantum of costs is not ordinarily likely to be overtly significant relative to costs incurred overall in any proceeding, which will be assessed at the conclusion of a proceeding (moulded by court rules and conventional principles).

    7. Re Minister for Immigration and Ethnics Affairs & Anor; Ex parte Qin (1997) 186 CLR 622

    8. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

55. The Court is not attracted to the notion of tracking through the history of all the correspondence relating to this dispute. That is an inefficient use of its time and resources. Further, the overall justice of the result of an interlocutory application is often not known until the final substantive result of the proceeding as a whole. Whilst the defendant presently may think she has wasted costs on an inconclusive discovery application, should the plaintiff ultimately prevail in his defamation suit, he will conceivably think that he has wasted unrecoverable costs, including those of inconclusive procedural applications, incurred as a result of the defendant’s defence of the proceeding.

56. In my view, the appropriate order is that the costs of the discovery application should be costs in the cause.

57. For all of the above reasons, the Court orders that:

1. The defendant’s application for a temporary stay is refused and the defendant should pay the plaintiff’s costs of that application; and

2. The costs of the defendant’s discovery application are costs in the cause.

**********

Endnotes

Amendments

30 April 2023 - Paragraph 40 - added "falls into this category"

Paragraph 55 - substituted "resolved" for "inconclusive"

Decision last updated: 30 April 2023