District Court
New South Wales
Medium Neutral Citation: King & Anor v Greenwood (No.4) [2023] NSWDC 5 Hearing dates: On the papers Date of orders: 30 January 2023 Decision date: 30 January 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 12
Catchwords: COSTS – successful defamation suit – self-represented plaintiffs apply for costs
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Defamation Act 2005 (NSW) s 40
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.2, 42.5
Cases Cited: Cachia v Hanes (1994) 179 CLR 403
Maytom v Kennett [2014] NSWSC 116
Texts Cited: G Dal Pont, Law of Costs (4th ed, LexisNexis Butterworths, electronic version)
Ritchie’s Uniform Civil Procedure (NSW) (LexisNexis Butterworths)
Category: Costs Parties: Mr C King (first plaintiff)
Mrs J King (second plaintiff)
Mr A Greenwood (defendant)Representation: Mr C King, in person
Mr A Greenwood, in person
File Number(s): 2021/00063201 Publication restriction: Nil
REASONS FOR Judgment
Background
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On 15 March 2022, I delivered reasons for judgment in this defamation suit (King & Anor v Greenwood [2022] NSWDC 61). The plaintiffs were successful in obtaining damages of $46,941.04 ($31,294.03 for the first plaintiff and $15,647.01 for the second plaintiff) for the first publication, but they were unsuccessful in relation to the second publication.
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I reserved the question of costs of the proceeding noting that there was pending an application for contempt by the plaintiffs against the defendant arising from an alleged non-compliance with an interlocutory injunction granted by Gibson DCJ on 3 June 2021. Order 7 made on 15 March 2022 contemplated that upon determination of the application for contempt, the parties would have the opportunity, within 7 days, to provide written submissions on costs of the proceedings with any contest to be determined on the papers.
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Subsequent to my decision, the plaintiffs renewed their application for contempt – or, more precisely, brought an application for referral to the Supreme Court for determination of contempt - by filing an amended notice of motion on 24 August 2022. That application was heard by Gibson DCJ on 7 December 2022 and determined by her Honour on 9 December 2022. It is notable that all parties were legally represented on that application following a referral for legal assistance made by her Honour for the purpose of that application. Her Honour dismissed the application for referral to the Supreme Court and ordered the parties to bear their own costs of the plaintiffs’ application.
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By their written submissions filed on 21 December 2022, the plaintiffs submit that they should receive an order for costs on an indemnity basis of the proceeding, whilst acknowledging a limitation upon the Court making such order in terms I will shortly return to. Following receipt of those submissions, I directed my Associate to email the defendant, on 11 January 2023, reminding the defendant of order 7 made on 15 March 2022, and inviting him…
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- Case
- [2023] NSWDC 5
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the assessment of costs for successful litigants who did not have legal representation, and the application of the general rule that costs follow the event. The court needed to balance the principle that successful litigants should recover costs against the need to ensure that the legal system does not unfairly burden those who choose to represent themselves. Additionally, the court had to consider whether the costs claimed by the plaintiffs were reasonable and necessary.
The court held that while the plaintiffs were entitled to recover costs, the amount of costs awarded should be proportionate to the complexity and length of the case. The court emphasised that self-represented litigants should not receive the same level of costs as those who are professionally represented. After evaluating the evidence and submissions, the court determined that the plaintiffs were entitled to a reduced amount of costs that reflected their status as self-represented parties. This decision took into account the time and effort involved in the litigation, as well as the general principles governing costs in Australian courts.
Orders
Orders of the court
See paragraph 12
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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