Goldberg v Randel (No 2)

[2008] NSWDC 283

CITATION:	Goldberg v Randel (No 2) [2008] NSWDC 283
HEARING DATE(S):	5 December 2008
EX TEMPORE JUDGMENT DATE:	5 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Costs of 20 June, 1 August, 8 August, 5 September and 3 October 2008 to be costs in the cause. (2) Costs of this application to be costs in the cause.
CATCHWORDS:	COSTS - defamation - costs for multiple interlocutory proceedings
LEGISLATION CITED:	Uniform Civil Procedure Act 2005 (NSW), ss 56-62
CASES CITED:	Andrews v Herald & Weekly Times (Supreme Court of NSW, Begg J, 11 December 1978, unreported) Cretazzo v Lombardi [1975] 13 SASR 1 Goldberg v Randal [2008] NSWDC 45 Goldschmidt v Constable & Co [1937] 4 All ER 293 Ritter v Godfrey [1920] 2 KB 47 Roache v News Group Newspapers [1998] EMLR 161 Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 (CA) Zierenberg v Labouchere [1893] 2 QB 183
TEXTS CITED:	Brown, Defamation Law of Canada, 2nd ed Gatley on Libel and Slander, 10th ed
PARTIES:	Plaintiff: Raymond Goldberg Defendant: John Randel
FILE NUMBER(S):	5709 of 2006
COUNSEL:	Plaintiff: Ms S Chrysanthou Defendant: Mr R Rasmussen
SOLICITORS:	Plaintiff: Kalantzis & Co Defendant: Bennett & Philp

JUDGMENT

1. The plaintiff and defendant have been locked in combat for most of this year concerning a late requisition for a jury, particulars, discovery and interrogatories. After a series of listings, the pleadings are now effectively complete and the defendant seeks costs for a number of these arguments on the basis that the defendant was largely successful.

2. Interlocutory applications are perhaps more common in defamation than in many other areas of the law. The costs can be considerable. A defendant who has been brought into court in a defamation action can find such costs a heavy burden. Considerations sufficient to justify a refusal of costs to a plaintiff are not necessarily sufficient in the case of a defendant (Ritter v Godfrey [1920] 2 KB 47 at 53 per Lord Sterndale MR).

3. The defendant submits that his success in interlocutory applications means that costs should follow the event. This principle has particular application in defamation actions, because it discourages plaintiffs from bringing (and defendants from defending) defamation actions they are likely to lose: Roache v News Group Newspapers [1998] EMLR 161.

4. However, caution should be exercised in cases where both parties have been in default of timetables and where a party can point to only partial success. There is much to be said for leaving costs in such circumstances to the ultimate victor, for the reasons expressed in Cretazzo v Lombardi [1975] 13 SASR 1 at 11 (per Bray CJ) and 16 (per Jacobs J).

5. A careful analysis of each of the occasions for which costs are claimed by the defendant shows no clear-cut victories. The defendant in fact withdrew all objections to the plaintiff’s discovery and the defendant’s failure to provide proper particulars of truth was a significant problem, since such particulars must be given…