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 before discovery and interrogatories can take place.

6. The parties have provided me with written submissions and indicated that they will be content for me to email my decision to them later today. I have set out an analysis of each of the occasions for which costs orders are sought. These are:

(a) 20 June 2008;
(b) 1 August 2008;
(c) 8 August 2008;
(d) 5 September 2008; and,
(e) 3 October 2008.

7. On 28 March I made rulings on a number of matters including an application for extension of time to file a jury requisition (for which I ordered the defendant to pay the plaintiff’s costs: Goldberg v Randal [2008] NSWDC 45) and complaints of failure to provide discovery and answer interrogatories (for which I ordered costs in the cause). The parties entered into a timetable, with the intention of the matter being ready to take a hearing date.

8. When the matter came back before me on 20 June there had been slippage on both sides of the timetable. The plaintiff complained the defendant had failed to provide further particulars of truth and the defendant complained concerning the plaintiff’s discovery and answers to interrogatories. I made orders for further particulars of truth by 27 June, discovery by 4 July and answers to interrogatories by 11 July. I reserved costs.

9. The defendant now seeks an order for the costs of that day.

10. The failure of the defendant to provide particulars of truth was the most important failure to comply. A party is not entitled to seek discovery and interrogatories before providing particulars of truth. A defendant “is not entitled to discovery for the purpose of finding out if he has a defence or not” (Zierenberg v Labouchere [1893] 2 QB 183 at 188 per Lord Esher MR). The defendant must give full particulars before discovery: Goldschmidt v Constable & Co [1937] 4 All ER 293 at 294; followed in Andrews v Herald & Weekly Times (Supreme Court of NSW, Begg J, 11 December 1978, unreported). Where particulars are not given by the defendant the pleadings are not considered to be complete and there should be no order for production or discovery: Brown, Defamation Law of Canada, 2nd ed., 20.4(2). In fact, if such particulars are not provided, the defendant’s defence may be liable to be struck out: Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 (CA).

11. The plaintiff submits that since each of the parties had failed to comply the appropriate order is costs in the cause. That is a reasonable and sensible attitude for the plaintiff to take, and I propose to order accordingly.

Directions hearing 1 August 2008

12. On 20 June I ordered the plaintiff to provide an affidavit of discovery by 4 July; it was in fact provided on 31 July, the day before the matter coming back to court. The affidavit deposed merely to there being no further material to discover, which had been the plaintiff’s position at the 20 June directions hearing, so its contents came as no surprise, even though the affidavit was filed late. On 5 September the defendant withdrew the assertion that discovery was inadequate.

13. The defendant seeks a costs order on the basis of failure to comply. However, the affidavit in question proved to be unnecessary. The plaintiff did indeed have no further documents to discover, and the defendant eventually accepted this.

14. Each of the plaintiff and defendant ask for costs orders in their favour. All that happened on 1 August was that the matter was listed for argument concerning discovery on 8 August. It is appropriate to make the same order in relation to these proceedings as for 8 August and I have set out below the costs orders I made for this argument.

Directions hearing and argument 8 August 2008

15. These proceedings were listed for argument concerning discovery and interrogatories. The interrogatories argument was added on the day after the verified answers were served unchanged on 18 August.

16. There were problems with the plaintiff’s answers to interrogatories and I ordered the plaintiff to serve fresh answers by 29 August, listing the matter for argument on 5 September together with the discovery argument.

17. By 5 September the defendant had withdrawn all objections to discovery. In effect, both parties had spent time on issues on which they were ultimately unsuccessful.

18. The plaintiff submits that the appropriate order in such circumstances is for the costs to be costs in the cause. I accept this submission. In my view the costs of the 8 August listing are a part of this application, and the same order should be made for costs concerning the costs of that day.

Directions hearing and argument 5 September 2008

19. I made orders for further answers to certain interrogatories after hearing argument. The parties made a number of concessions (e.g. the plaintiff withdrew the claim for special damages) and the matter was allocated a hearing date. Costs were reserved.

20. The defendant now seeks a costs order in his favour.

21. The reason for the defendant’s partial success was that the defendant agreed to provide further particulars of truth which meant that interrogatories previously objected to on the basis of relevance were no longer the subject of objection. The defendant failed in relation to a number of other objections to interrogatories. It was a case of mixed success for both parties.

22. In circumstances such as these it is appropriate that costs be costs in the cause.

Directions hearing and argument 3 October 2008

23. On 5 September I stood the matter over to 3 October for further hearing if required, the reason being that I allocated a hearing date (29 June 2009) for the whole of the proceedings.

24. When the matter came before me for directions on 3 October the plaintiff had only just provided answers to interrogatories the day before. The defendant complained that there were many reminder letters sent to the plaintiff over this period not only about the further answers to interrogatories but concerning other issues. The defendant made an application for costs. As I could not remember which of the parties had failed to comply with which prior orders I directed the parties to provide written submissions in 7 days and stood the matter over to 24 October, intending to give judgment on the submissions.

25. Both parties failed to comply and the matter required a further timetable on 24 October (for which date neither party seeks a costs order). The defendant’s outline of costs is dated 24 October and the plaintiff’s outline (which should have been provided by 14 November) was not provided until 17 November.

Conclusion concerning costs in multiple interlocutory proceedings

26. The hearing date allocated for the argument on 24 October is 5 December, and I am providing my judgment today based on the submissions I received from the parties.

27. There is some default and delay on both sides. Courts should not encourage parties in defamation litigation to stockpile costs orders in circumstances where the real issues of the case may turn out, at the hearing, to be entirely different. For this reason, whether or not costs should follow the event is a question which, in defamation litigation in particular, needs to be seen in the context of the proceedings. The precepts of ss 56-62 Uniform Civil Procedure Act 2005 (NSW) should also be borne in mind. Parties whose conduct falls outside the “just, quick and cheap resolution of the real issues in the proceedings” may not be entitled to orders for costs if delay or non-compliance is a feature of their conduct of the case.

28. The plaintiff has had greater success in this application for costs, in that I have made the orders that the plaintiff sought, namely costs be costs in the cause. However, when making costs orders, the fact that a defendant has been brought into litigation (as opposed to commencing proceedings, and being able to look forward to the award of damages) is a factor to which some weight should be given, especially where there has been non-compliance with timetables by the plaintiff on a number of occasions.

29. It is important that the parties concentrate on the hearing of these proceedings rather than take a combative stance about the costs of proceedings. Accordingly I am of the view that not only should the costs of the hearing on 3 October be costs in the cause, but so should the costs of this application. It will be at the hearing that it will become clear “who, as a matter of substance and reality, has won” (Gatley on Libel and Slander, 10th ed., [35.12], citing Sir Thomas Bingham MR in Roache, supra).

Orders

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.

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