Kelly v Davis (No.2)

[2022] NSWDC 376

District Court

New South Wales

Medium Neutral Citation:

Kelly v Davis (No.2) [2022] NSWDC 376

Hearing dates:

On the papers

Date of orders:

29 August 2022

Decision date:

29 August 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 23

Catchwords:

COSTS – plaintiff’s unsuccessful defamation suit against two defendants – Calderbank offers served – application for partial indemnity costs orders - no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1, 42.2

Cases Cited:

Calderbank v Calderbank (1975) 3 All ER 333

Kelly v Davis & Anor [2022] NSWDC 352

Category:

Costs

Parties:

Mr M Kelly (plaintiff)
Mr O Davis (first defendant)
Ms J Chan (third defendant)

Representation:

Mr Kelly represented himself
Mr Elachkar (Counsel) for the first defendant
Mr Vogel (solicitor) for the third defendant

File Number(s):

2020/00272992

Publication restriction:

Nil

REASONS FOR Judgment

Background

1. On 18 August 2022 I delivered reasons for judgment in a defamation suit which the plaintiff (Mr Kelly) brought against the first defendant (Mr Davis) and the third defendant (Ms Chan). Those reasons were published on Caselaw^[1] (hereafter ‘My Earlier Reasons’). Mr Kelly did not succeed in either of his claims. After referring to two of the ‘usual’ rules concerning costs (in rr 42.1 and 42.2 of the Uniform Civil Procedure Rules 2005 (NSW), I determined that the question of costs, in respect to each claim, be reserved and allowed the parties opportunity to make written submissions (of finite length) on costs. This judgment determines costs questions left outstanding from My Earlier Reasons.

   1. Kelly v Davis & Anor [2022] NSWDC 352

2. The Court has received written submissions, concerning costs, from the first and third defendants, but not from the plaintiff.

3. At the hearing and through the proceeding, the plaintiff represented himself. Attempts had been made to procure representation of him; although, as noted in Mr Earlier Reasons, these were mostly unavailing. The first defendant was represented by Counsel, Mr Elachkar. The third defendant was represented by a solicitor, Mr Vogel.

Preliminary matter

4. At 3:59pm on 18 August 2022, after My Earlier Reasons had been delivered earlier in the day, Mr Kelly sent an email to my Associate; which was not copied to the legal practitioners for Mr Davis and Ms Chan. At 5:07, 5:09 and 5:10pm on 22 August 2022, Mr Kelly sent further emails to my Associate; again, not copied to the legal practitioners for Mr Davis and Ms Chan.

5. As was explained to Mr Kelly, during the hearing, because of our system of open justice, parties to a legal proceeding do not have an unfettered right to communicate privately with the Court; and absent exceptional circumstances, they should not do so without obtaining the knowledge and consent of legal practitioners acting for the party’s opponent or opponents in advance of the communication. The subject matter of Mr Kelly’s emails had nothing to do about costs (about which Mr Kelly was, along with the defendants, permitted to make submissions, in accordance with the time…