Ghougassian v Fairfax Community Newspapers Pty Ltd

[2015] NSWCA 21

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 21
Hearing dates:	16 February 2015
Decision date:	16 February 2015
Before:	Basten JA
Decision:	(1)Dismiss the applicant’s motion filed on 5 February 2015. (2)Order that the applicant pay the respondents’ costs of the motion other than the costs of the affidavit of Mr Beattie dated 16 February 2015.
Catchwords:	PRACTICE AND PROCEDURE – application for stay of costs order pending appeal – no evidence of impecuniosity of applicant – no suggestion that respondents unwilling or unable to repay if appeal succeeds – offer of undertaking to give notice of enforcement proceedings COSTS – costs of motion – refusal of motion regardless of proffered undertaking – costs of late affidavit of respondents excluded
Legislation Cited:	Legal Profession Act 2004 (NSW), s 377
Category:	Procedural and other rulings
Parties:	Michael Ghougassian (Applicant) Fairfax Community Newspapers Pty Ltd (First Respondent) Fairfax Digital Australia & New Zealand Pty Ltd (Second Respondent) Jade Wittmann (Third Respondent)
Representation:	Counsel: Mr R Rasmussen (Applicant) Mr A Dawson (Respondent) Solicitors: Robert Balzola & Associates (Applicant) Banki Haddock Fiora (Respondents)
File Number(s):	2014/175465
Decision under appeal	Court or tribunal: District Court Date of Decision: 22 May 2014 Before: Bozic DCJ File Number(s): 2014/60764

Judgment

1. BASTEN JA: The matter before me today is a limited application. The applicant or appellant seeks an order for the stay of an execution of an order made by Judge Bozic in the District Court on 22 May 2014, requiring that it pay the defendant’s costs of the proceedings in that Court. Bozic DCJ dismissed the defamation proceedings then extant in the District Court and ordered the plaintiff in that Court, the present applicant, to pay the defendant’s costs. From those orders generally the applicant has appealed to this Court.

2. The stay is sought only in respect of the costs order. The basis on which the stay is sought, as put in argument today, was that there was a lacuna between the date on which a costs assessor’s determination was made and the suspension provided by s 377 of the Legal Profession Act 2004 (NSW), where a review was sought. That is because the suspension operates only from the date that the Manager, Costs Assessment, refers a determination to a panel for review, rather than when the review is sought. It was suggested that the delay could be for a significant period.

3. If the application for a stay had come on at any other point in the process, it is unlikely that an order would have been made. It was not suggested that if the order were eventually enforced and the amount paid, the respondents would be unlikely or unable to repay the amount. The certificate is for approximately $40,000, and while that is not an insignificant amount, it was not submitted that the applicant is impecunious to the extent that he would incur real prejudice in being required to pay the amount at this stage. There is no stay of the order of the Court below upon an appeal being lodged in this Court. Accordingly, if a stay is required, it must be sought. That has happened. Nevertheless, in the circumstances of the case, I would not have been minded to grant a stay in any event.

4. Matters took a step further in the course of the hearing this morning. Mr Dawson, on behalf of the respondent, proffered an undertaking in the following form, namely, that the respondent will not take any steps to enforce a judgment in respect of the costs order without seven days’ notice to the applicant to allow the applicant to take such action as he may be advised.

5. In those circumstances, the applicant has some protection in respect of the period about which he expresses concern. There is, however, no evidence before me that the respondent intended to enforce the costs order, except to the extent that it had taken the necessary preliminary steps of seeking to have a costs assessor determine the amount of costs. That assessment having been obtained, and absent a review of the assessment, the respondents would have been entitled to have the amount registered as a debt and proceedings could have been taken to enforce payment.

6. Those steps were not taken prior to the filing of the notice of motion on 5 February 2015. Indeed, the filing of the motion was in effect contemporaneous with the indication by way of notice that a review of the assessment would be undertaken. I do not assume, and I would not infer in the absence of evidence, that the respondents would have incurred the costs of instituting legal proceedings, firstly, in the absence of any stated intention to do so and, secondly, in circumstances where a review and possible adjustment to the costs determination was still available and was to be pursued. In these circumstances, I would dismiss the motion.

7. There is a separate question as to whether the costs of the motion should be dealt with today. The respondents seek costs. The applicant submits that the costs should be costs in the proceedings. The questions are twofold: first, whether the notice of motion was properly brought in the sense that it was likely to succeed, absent the offer of the undertaking. I have already indicated that I would not have granted the stay, regardless of the proffering of the undertaking. In that event, costs should follow the event and the applicant should pay the costs.

8. Secondly, the applicant sought to resist the inclusion of the costs of the affidavit of Mr Beattie, read by the respondents on this application. The affidavit was filed belatedly, namely, in court today. It was dated today. It was therefore not available to the applicant prior to the hearing today. As it turned out, the affidavit was largely immaterial because the basis on which the application for a stay was made was not that which had been anticipated by the other respondents. It is not conducive to the expeditious resolution of these proceedings to engage in an assessment of the extent to which each party had given notice to the other of its proposed intentions or expectations with respect to the process of enforcing the costs order.

9. In the circumstances, Mr Beattie’s affidavit was not able to be contradicted or challenged or supplemented by the applicant. To the extent that it was of assistance, its contents were not foreshadowed. There would have been circumstances in which it would have been appropriate, had there been any suggestion of prejudice, not to allow it to be read. It did not advance the respondents’ case. Accordingly, I would not include within the order for costs the costs of Mr Beattie’s affidavit.

10. The Court makes the following orders:

(1)   Dismiss the applicant’s motion filed on 5 February 2015.

(2)   Order that the applicant pay the respondents’ costs of the motion other than the costs of the affidavit of Mr Beattie dated 16 February 2015.

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