Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd
[2013] WASC 347
•20 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KINGSFIELD HOLDINGS PTY LTD -v- SULLIVAN COMMERCIAL PTY LTD [2013] WASC 347
CORAM: KENNETH MARTIN J
HEARD: 2 AUGUST 2013
DELIVERED : 2 AUGUST 2013
PUBLISHED : 20 SEPTEMBER 2013
FILE NO/S: CIV 1146 of 2013
BETWEEN: KINGSFIELD HOLDINGS PTY LTD
Plaintiff
AND
SULLIVAN COMMERCIAL PTY LTD
Defendant
FILE NO/S :CIV 1147 of 2013
BETWEEN :JEFFREY STEWART LEE
Plaintiff
AND
IVAN RUTHERFORD
Defendant
FILE NO/S :CIV 1106 of 2013
BETWEEN :KINGSFIELD HOLDINGS PTY LTD
Plaintiff
AND
IVAN RUTHERFORD
Defendant
Catchwords:
Defamation - Challenges to pleas of justification and contextual truth
Subpoena - Challenge to validity - Objection to inspection of documents by party to litigation - No objections by subpoenaed person - Documents produced to court
Legislation:
Defamation Act 2005 (WA), s 25, s 26
Rules of the Supreme Court 1971 (WA), O 2, O 36B, O 43
Result:
Inspection of subpoenaed documents allowed before trial
Defendant justification pleas allowed
Category: B
Representation:
CIV 1146 of 2013
Counsel:
Plaintiff: Mr J C Maclaurin
Defendant: Mr M C Goldblatt
Solicitors:
Plaintiff: Avedon Lee
Defendant: Lawton Gillon
CIV 1147 of 2013
Counsel:
Plaintiff: Mr J C Maclaurin
Defendant: Mr M C Goldblatt
Solicitors:
Plaintiff: Avedon Lee
Defendant: Lawton Gillon
CIV 1106 of 2013
Counsel:
Plaintiff: Mr J C Maclaurin
Defendant: Mr M C Goldblatt
Solicitors:
Plaintiff: Avedon Lee
Defendant: Lawton Gillon
Case(s) referred to in judgment(s):
Buckeridge v Walter [2010] WASCA 134
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Fleming v Advertising-News Weekend Publishing Co Pty Ltd [2010] SASC 255
Ives v The State of Western Australia [No 8] [2013] WASC 277
Negoescu v Griffiths (Unreported, WASC, Library No 970565, 30 October 1997)
Roman v Express Newspapers plc [1987] EWCA Civ J06303‑3
TCN Channel 9 Pty Ltd v Berrigan (1996) Aust Torts Rep 81‑404
Waynes Merthyr Co v Radford & Co [1896] 1 Ch 29
Western Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
Wootton v Sievier [1913] 3 KB 499
Yorkshire Provident Life Assurance Co v Gilbert and Rivington [1895] 2 QB 148
Zierenberg v Labouchere [1893] 2 KB 183
KENNETH MARTIN J:
(These reasons were delivered extemporaneously on 2 August 2013 and have been edited from the transcript.)
I am dealing with applications in three related actions. One of the plaintiffs is common to two of the actions, as is one of the defendants. I first address CIV 1106 of 2013. This is the action between Kingsfield Holdings Pty Ltd and Mr Ivan Rutherford, in which two interrelated, fundamental issues arise.
The first main issue relates to a document subpoena the defendant issued to the proper officer of the Environmental Health Directorate (the Directorate), filed 19 April 2013. The subpoena has since been answered without objection by the Directorate. The returned documents now lie in the custody of the court to be dealt with in accordance with the court's directions.
It came to the attention of the plaintiff that the defendant had not complied with O 36B r 5(2) of the Rules of the Supreme Court 1971 (WA), in that at the time of issue of this subpoena, notice was not given to the plaintiff. Pre‑trial document subpoenas these days may be issued to non‑parties, without leave.
The plaintiff has now objected to inspection by the defendant of any returned documents. A party issuing the subpoena would normally have the right to inspect all documents returned, to which objection is not raised by the answering party. By orders made on the papers pursuant to O 43 r 16 of the Rules of the Supreme Court on 12 June 2013, I ordered there be no inspection until the plaintiff was afforded the opportunity to articulate its opposition against the defendant inspecting documents produced by the Directorate in answer to the subpoena.
What had been sought under the defendant's document subpoena from the Directorate were:
(a)all files, notes and documents in whatever format relating to the Department of Health's inspection of Quokka Joe's Café, 342 Sommerville Drive, Rottnest Island, on 23 January 2012 ('inspection') and any follow up from that Inspection; and
(b)any orders, directions, requisitions and/or letters issued by the Department of Health in respect of Quokka Joe's Café during or after the Inspection.
Addressing today the issue of whether this defendant should be permitted to inspect, I first note the plaintiff still strongly opposes any inspection of these documents by the defendant. This is notwithstanding they are not the plaintiff's documents. Nor does the plaintiff raise any privilege assertions. The plaintiff's position, nevertheless, is that it ought to have received notice of the issue of the subpoena in accord with O 36 r 5(2) of the Rules of the Supreme Court. If it had, it says it would have objected to the subpoena being answered. The plaintiff says it would have applied to set it aside on various grounds. But pragmatically, the subpoena has now been answered and any such grounds of objection emanating from the plaintiff, if valid, can be addressed at the present level of objections against inspection.
At this point it is necessary to divert to explain the parameters of the present defamation action, including the second fundamental issue, in order to properly understand the arguments the plaintiff is raising in opposing inspection of the documents from the Directorate.
The second fundamental issue on these applications concerns the defences of justification pleaded by the defendant against two core defamatory imputations which the plaintiff has raised either as popular (false) or legal (true) innuendos.
The plaintiff filed a statement of claim after its writ, on 23 January 2013. The plaintiff pleads at par 2 of its statement of claim (of 8 March 2013):
In or about late January 2012 and between 22 January 2012 and 31 January 2012 the defendant (that is Mr Ivan Rutherford) spoke and thereby published of and concerning [Kingsfield Holdings Pty Ltd] to a Mr Peter Duffield in or about the settlement area of Rottnest Island the words or words to the following effect: 'Quokka Joe's Café had been closed following a health inspection of the cafe last week'.
Fifteen words allegedly spoken by Mr Rutherford concerning Quokka Joe's Café can now be seen to have been responsible for generating not only this litigation, but also the two related actions, over what was said to a Mr Duffield at Rottnest, and its aftermath.
The plaintiff corporation says the 15 words generate two key defamatory imputations. These are said to be imputations arising either in the natural and ordinary meaning of the spoken words (that is, as popular or false innuendos) or augmented upon the basis of the knowledge of extra facts beyond the publication and held by a recipient of the publication (that is, a legal or true innuendo).
The two key imputations as pleaded which have not, to date, been challenged by the defendants, are:
(a)the plaintiff's business Quokka Joe's Café had been closed down due to action taken by health authorities after a health inspection of the café;
(b)the plaintiff was unfit to conduct a cafe or similar business because it had allowed the conditions of Quokka Joe's Café to fall into such a state where it was, for public health reasons, unfit to open and had to be closed by action taken by the health authorities.
A defence was filed on 15 April 2013. It has since been amended. By par 2 of each defence Mr Rutherford effectively admits his publication of the words complained of to Mr Duffield. A common par 2 says:
The defendant admits the allegations in paragraph 2 of the Statement of Claim and says further that the publication was published on or about 30 January 2012.
The defendant first denied the innuendos complained of. Alternatively to that primary denial, the defendant's defence raised pleas of justification, under s 25 of the Defamation Act 2005 (WA), pleading at par 3.2:
Alternatively to 3.1, and in the event of the Court finding that the Publication bore either of the meanings pleaded by the Plaintiff defamatory of it, it says that those imputations were substantially true in that Quokka Joe's Café was closed by the Environmental Health Directorate of the West Australia Department of Health (Department of Health) following a health inspection of Quokka Joe's Café on or about 23 January 2012.
That defence plea was subsequently amended. Leave to amend was not required.
Mr Rutherford's amended defence altered the par 3.2 justification plea. The amendment came four days after the document subpoena was issued to the Directorate. An initial defence plea contended (3.2) Quokka Joe's Café was closed by the Directorate adding the words then seen, 'following a health inspection on or about 23 January 2012'.
The plaintiff complains no particulars were given to support that initial plea of justification. But a plea of justification must be measured by reference to the circumstances in which it is made. The defendant's justification plea was relatively confined as to the closure of the café.
What features significantly in both of the plaintiff's two imputations (either as the popular meaning, or on the true innuendos) is one simple event – namely, the closure of Quokka Joe's Café at Rottnest Island during January 2012.
The phrase invoked by the plaintiff by the imputation 3(a) is 'closed down'. The phrase under 3(b) is 'closed by action taken by the health authorities'.
As I earlier related, a document subpoena to the Directorate issued on 19 April and it was duly answered.
I have as evidence on these applications an affidavit of Mr Alexander Freund sworn 11 July 2013, which the defendant reads. Mr Freund, a solicitor, relates circumstances of his telephone conversation with a Mr Goodchild of the Directorate.
No objection was raised by the Directorate to producing materials as requested by the subpoena following a telephone clarification over whether or not copies of documents would be appropriate to be produced. Mr Freund deposes these words passed between Mr Goodchild and himself (par 10):
Just so you know we didn't directly close Quokka Joe's Café, but we certainly did identify a number of issues which required attention and rectification and the documents will show what those issues were.
Four days later the defendant amended the defence.
There is an issue raised over whether I should evaluate the request to inspect documents as produced by the Directorate by reference to the pleaded position at 15 April, when the defendant put in a first defence, or the position expressed by reference to the amended defence now pleaded.
A substantive truth defence is pleaded at par 3.2.1 of the amended defence, for which the defendant now gives particulars.
The defendant pleads by 3.2, still primarily denying the two imputations contended for by the plaintiff at 3.1 of its statement of claim as follows:
Alternatively, and in the event of the Court finding that the Publication bore either of the meanings pleaded by the Plaintiff defamatory of it, it says that those imputations were substantially true in that
3.2.1 Quokka Joe's Café was closed due to action taken by the Environmental Health Directorate of WA Department of Health (Department of Health) following a health inspection of Quokka Joe's Café on or about 23 January 2012.
Particulars
(a)the Department of Health conducted a health inspection of Quokka Joe's Café on or about 23 January 2012;
(b)as a result of issues of a public or occupational health and safety nature, identified by the Department of Health at the health inspection, the Plaintiff closed Quokka Joe's Café to carry out works to address such issues;
(c)Quokka Joe's Café was closed on or about 23 January 2012 and did not re‑open until on or about 30 January 2012 during which time the Plaintiff carried out the works.
There follow the words:
The defendant may provide further particulars after the plaintiff's discovery.
During argument, counsel for the defendants told me that the last sentence seen there was accepted to be inappropriate. It is not relied upon and should be treated as voluntarily excised. The concession is properly made. I evaluate the matter on that basis.
The effect of the amendment to the defence under par 3.2.1 sees the substantive truth plea altered from having formerly said 'Quokka Joe's Café was closed by the Environmental Health Directorate' to now read 'Quokka Joe's Café was closed due to action taken by the Environmental Health Directorate' (emphasis added). It is also pleaded at par 3.2.2 of the amended defence:
The plaintiff was unfit to conduct a cafe or similar business because it had allowed the conditions of Quokka Joe's Café to fall into such a state where it was, for public or occupational health and safety reasons, unfit to remain open.
There are also amended defence pleas of contextual truth, seen at par 3.3, invoking s 26 of the Defamation Act, and pleas of truth to alternative imputations seen at par 3.4 (known as Polly Peck pleas). There is also the plea at par 3.3.5 raising the defence of qualified privilege at common law (from the chapeau to par 3.3.5).
As may now be better appreciated, the core issue of disputation concerning the inspection of the subpoenaed documents and the argued conceptual sustainability of the defence pleas of justification, are interrelated. As I have mentioned, the amended defence at par 3.2.1 modified the initial justification defence, to an extent.
There has been no attack to date against the plaintiff's two pleaded imputations, alleged to arise from the 15 words of the Rutherford/Duffield conversation. But clearly, these imputations are unique in their foundation. First, both imputations as formulated exceed the 15 words of the underlying Rutherford/Duffield conversation. Second, each imputation can be seen to strive to attribute a causative element to the event of the closure of Quokka Joe's Café by using the phrase 'due to' in (a), or using the word 'because', in (b). (I also note the addition in (a) of a use of the word 'down', which does not even appear to have been uttered in the Duffield/Rutherford conversation.)
On my assessment, the causative assertions arising in the plaintiff's innuendos prepare the canvas for arguments which followed over why Quokka Joe's Café came to be closed.
It is not clear to me what precisely is encompassed by the plaintiff's phrase 'due to action'. But the imputation is not (yet) attacked by the defendant. He has chosen by the defence (for expressed economic reasons) to engage these imputations head on.
What at first may look conceptually advantageous to the plaintiff, in terms of a breadth of its pleaded imputation (a), 'closed due to', delivers correlative consequences for the responsive positions open to the defendant. The defendant has chosen, under its amended defence, effectively to use the same phrase in its defence pleading under 3.2.1:
Quokka Joe's Café was closed due to action taken by the Department of Health following an inspection. (emphasis added)
As seen, some causative attribution was also attempted by the plaintiff by its imputation as to its alleged corporate unfitness to conduct a café or business under 3.3(b) of the imputation by a phrase 'because it had allowed conditions', as that plea goes. In effect, the plaintiff's causative argument at 3.3(b) is because the event of a café closure has occurred, this necessarily reflects upon the plaintiff's corporate fitness to conduct a café or other business. Again, this is a rather unique blanket proposition, not presently attacked by the defendant. It is met and responded to, in effect, by a pleaded defence, adopting the same conceptual approach. This is by reliance upon the event of closure of the café to justify against the meaning the plaintiff draws, reflecting upon the so‑called corporate fitness of the plaintiff to conduct a café.
Subopena: Inspection access to documents produced
The first issue is whether to permit inspection by the defendants of documents produced by the Directorate. In my view, inspection should be allowed.
It is not appropriate to evaluate the merits of the inspection application 'frozen in time' by reference to how matters were once pleaded on 15 April 2013, when the defendant first pleaded a defence. Clearly, things have moved on. Arguments about whether the subpoena could have been attacked by the plaintiff as too wide by reference to the initial defence is now hypothetical at best – not to mention wasteful of time and the court's resources.
In reaching this view, I have been taken to a number of interesting cases recited to me and starting back in the late 1890s, concerning defamation and justification pleas see: Zierenberg v Labouchere [1893] 2 KB 183; Yorkshire Provident Life Assurance Co v Gilbert and Rivington [1895] 2 QB 148; Waynes Merthyr Co v Radford & Co [1896] 1 Ch 29; Wootton v Sievier [1913] 3 KB 499; Roman v Express Newspapers plc [1987] EWCA Civ J06303‑3; TCN Channel 9 Pty Ltd v Berrigan (1996) Aust Torts Rep 81‑404; Negoescu v Griffiths (Unreported, WASC, Library No 970565, 30 October 1997) (Steytler J).
A position of principle seen taken in these cases is that a pleaded defence of justification in a defamation action ought be pleaded by reference to existing materials, rather than on a hope of later locating some material upon which the plea might be legitimately based. On the face of it, that presents as a completely orthodox proposition. Obviously, the application of this principle in practice then needs to be evaluated against the precise circumstances of every individual case. For instance, in a scenario of an allegation as to somebody's asserted misconduct or criminality, it could never be legitimate to plead a defence of truth in an expectation that in due course the process of discovery, or answered subpoenas, will unearth some supporting evidence of criminality or misconduct. There must exist an underlying factual base to support the plea as it is made. But that does not mean a provided fact base which is sufficient cannot be augmented, to be proved at a trial, after properly invoking the forensic processes of the court. An example of this is found in Yorkshire Provident, which concerned a plea of an insurance company not meeting claims by its clients.
For this particular case, the factual issues concerning the closure of the café present as narrow. Some things are clear. First is the factual event of the closure of Quokka Joe's Café at Rottnest Island during January 2012. In the circumstances presenting, some aspect of closure did not present as controversial. The closure was of some duration, although Mr Maclaurin, counsel for the plaintiff, told me in closing arguments the café's closure may not have been for as long as the whole week.
Second, it also seems clear that in purely chronological terms the café's closure happened following the event of a health inspection by the Directorate during January 2012.
Those two facts as to closure and inspection are clear. But a highly contentious issue then presents as to the underlying reason the café closed, as and when it did in January 2012. The plaintiff is first to raise a causation issue over that, through the way it has framed its two key imputation pleas.
Here then, I do not assess it as illegitimate overall for the defendant to forensically probe around issues of causation as to closure by seeking, before trial, documents in the possession of the Directorate in order to possibly cast some, or better, light upon reasons for the closure, including what precisely happened and when and why the café closed, as was rather foreshadowed during the conversation with Mr Freund (to which I have referred above).
The situation at the outset was that the notice of subpoena was not given in accord with O 36B, r 5(2). A copy of it was not served on the plaintiff, as it should have been. That omission was wrong, but it does not render the subpoena void (see O 2 r 1(1) of the Rules of the Supreme Court). The subpoena was, in fact, duly answered without objection by its addressee.
Therefore, the only question is whether or not to permit inspection. In my assessment, the precise reasons for the closure of Quokka Joe's Café that happened in January 2012 are central to the case. Moreover, they were first put into issue by the imputations raised by the plaintiff.
This case is not analogous to the old case authorities or subsequent decisions of this court referred to in argument, where a defendant puts up nothing, then seeks to fish around for some basis to support a plea of justification. Here there is established, in fact, a health inspection and then an event of closure of the café.
There has been shown, in my view, a legitimate reason to probe the Directorate's documentary materials.
I shall allow inspection of the materials produced on the subpoena to the Directorate, by the defendant.
Attack on pleas of justification
I move to the related attack by the plaintiff on the pleas of justification.
This, essentially, distils to a challenge against the particulars in support of the pleas, particularly par 3.2.1(b) of the defence, which reads:
As a result of issues of a public or occupational health and safety nature identified by the Department of Health at the health inspection, the plaintiff closed Quokka Joe's café to carry out works to address such issues.
From the chapeau to par 3.2.1(b) it can be seen that the subparagraph essentially seeks to engage upon the issue of causation, pleading that closure of the café was due to action taken by the Department of Health.
In my view, those pleas are respectably arguable and may stand. With the benefit of inspection of the materials from the Directorate, greater particulars may emerge before trial. An augmentation to particulars is a common scenario in commercial litigation, even in defamation actions. It simply means that as more precise information comes to hand, the precision of the particulars is magnified. There is nothing unusual in that. It assists the trial process.
On my view, these two central issues which have occupied the greater part of argument in CIV 1106 of 2013, must both be found in the defendant's favour.
Supplementary issues
That leaves a few supplementary issues to be resolved: first relates to the defence plea of contextual truth at par 3.3; and second a plea of what are called Polly Peck imputations at par 3.4.
In my view, par 3.4 meets the criteria of Western Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 in terms of pleas being of a lesser, but related and similar, nature to the imputations of the plaintiff (see also Buckeridge v Walter [2010] WASCA 134). Polly Peck defence pleas are as to the truth of the lesser imputations. Their lesser gravity falls within the penumbra of the plaintiff's imputation pleas. Here, I am satisfied the Polly Peck pleas are open to be legitimately pursued and should not be struck out.
However, as regards defence par 3.3 and its plea of contextual truth, made by reference to s 26 of the Defamation Act, the criteria under that section are seen to be joint. A plea of contextual truth proceeds on a basis that a defendant may prove that the matter carries, in addition to the defamatory imputation of which the plaintiff complains, one or more extra defamatory imputations that are substantially true. Under this criteria original defamatory imputations are effectively subsumed in terms of impact, so that they cannot be said to further harm the reputation of the plaintiff due to an overwhelming damage by reason of the substantial truth of the contextual imputations.
As regards contextual truth, I was taken to a recent decision of the New South Wales Court of Appeal, Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 as well as to observations made by Burley J in the Supreme Court of South Australia in Fleming v Advertising-News Weekend Publishing Co Pty Ltd [2010] SASC 255. The position in Australia is now uniform, courtesy of the uniform Defamation Acts. I refer in that regard to a recent decision of Le Miere J in Ives v The State of Western Australia [No 8] [2013] WASC 277 [81] ‑ [89] and to the cases there summarised by his Honour.
The par 3.3.1 and par 3.3.2 pleas of contextual truth by the defendant, are seen to be identical to the pleas of Polly Peck alternative imputations which it seeks to justify at pars 3.4.1 and 3.4.2. They are not substantially different to the plaintiff's pleas, as seen at pars 3(a) and 3(b). Hence, they cannot carry a differentiating quality towards showing a more serious imputation, something of a distinct character which might conceptually swamp the reputational harm from the imputations pleaded by the plaintiff, if established.
I must find for the plaintiff upon its attack against par 3.3 as regards the defendant's pleas of contextual truth. That result is effectively a corollary to the earlier conclusion that the defendant's Polly Peck pleas are conceptually legitimate.
That addresses matters raised in relation to CIV 1106 of 2013.
The other two actions
There are some knock‑on implications for the other actions, CIV 1146 of 2013 and CIV 1147 of 2013. Further, to the extent the defendant proposes amendments by its written submissions or through correspondence, they should be accepted as concessions and the pleadings corrected accordingly.
I need not say much further about CIV 1146 of 2013 and CIV 1147 of 2013, save for what has emerged concerning CIV 1146 of 2013 in terms of concessions made in respect of the Polly Peck plea by the defendant. These are evident against the new par 4.2, which is no longer attacked ‑ as not meeting the West Australian Newspapers v Elliott criteria. However, that plea remains under attack by reference to Fleming v Advertising‑News. A component of the overall par 4.2 plea of suspicion on reasonable grounds is the reliance upon who Mr Rutherford is, being incorporated in those pleas.
A high water mark of this approach is seen at par 4.2.5, which reads:
Mr Ivan Rutherford was a person held in high regard within the Rottnest Island business community and was a member of the Rottnest Island Business Association.
Identifying Mr Rutherford as a person with knowledge of matters as to what was happening on Rottnest Island at the time cannot go to establish reasonable grounds. But it may differentiate Mr Rutherford from other members of the general public. Hence, it seems to me that pars 4.2.1, 4.2.2, 4.2.3 and 4.2.4 as regards the bakery situated opposite Quokka Joe's, may stand. But par 4.2.5 cannot stand. This follows in a late emerging argument I deal with in order to try to advance the pleadings to a workable state, as soon as possible.
Regarding par 4.2.5 the argument is, in terms of its second limb, that what is left is not a sufficient basis to show the arguability of reasonable grounds. What is seen from 4.2.7 to 4.2.9 does provide an arguable basis for a plea of suspicion on reasonable grounds, as regards Polly Peck imputations at 4.2(a) and (b). Essentially, it is a simple matter. The essence of facts post the Rutherford/Duffield conversation distils to the event of an inspection of Quokka Joe's Café by two officers of the Directorate on 23 January 2012.
The fact of Quokka Joe's having been open that morning, then subsequently closed until 30 January 2012 or thereabouts, sets a factual platform for arguments about causation, in terms of what the Directorate inspection led to regarding the closure. There may be factual issues to be evaluated at trial in terms of extent of any closure periods. I am not dealing with that today.
All the defendant has to show presently is a respectable argument towards sustaining reasonable grounds for suspicion to support its Polly Peck plea. Apart from par 4.2.5 which, effectively, was conceded as misconceived, what remains does seem to me to provide that arguable basis. On that basis, save for par 4.2.5, these pleas stand.
Costs
The defendants enjoyed substantial success today in terms of what was the major focus of arguments as regards access to the subpoenaed documents, and the resisted attack against its particulars of justification. There was wider disputation – as the dimensions of the three sets of written submissions on the applications in these actions show.
Rather than a piecemeal costs approach, the better stance is that the plaintiff should bear the defendant's costs of these applications to be taxed, but they should only be the defendant's cost in the overall causes. Hence, if the matters go to trial and the defendants are successful, then the defendant will be entitled to its taxed costs of today's applications. But if the three actions go on to trial and the defendants lose, then the defendants will not suffer any costs from the result of today's applications. But they may, of course, then bear trial costs.
Towards today's applications in the three actions, the orders as to costs shall be that the costs will be the respective defendants' costs in the causes of each action, to be taxed.
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