Kostov v Nationwide News Pty Ltd (No 1)

[2018] NSWSC 1822

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kostov v Nationwide News Pty Ltd (No.1) [2018] NSWSC 1822

Hearing dates:

30 October 2018 & 23 November 2018

Date of orders:

30 November 2018

Decision date:

30 November 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) In proceedings 2018/248745:

(a) I dismiss the proceedings pursuant to UCPR r 13.4 although reserving the defendant’s rights to pursue the contempt charge referred to in prayers 4 and 5 of the defendant’s amended notice of motion filed 19 October 2018.

 

(b)   The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.

 

(c)   The remaining aspect of the proceedings (prayers 4 and 5 in the amended notice of motion filed 19 October 2018) is adjourned for mention and directions to 13 December 2018 at 9.30am.

 

(2) In proceedings 2018/258386:

 

(a) I dismiss the proceedings pursuant to UCPR r 13.4 against the first and second defendants.

 

(b)   The plaintiff is to pay the first and second defendants costs on an indemnity and gross sum basis assessed in the sum of $20,000.

 (3)   The plaintiff is restrained from commencing any further proceedings arising out of the publication of the article referred to in paragraph [1] of this judgment unless and until:

(a)   The costs ordered to be paid by McCallum J on 20 July 2018 in respect of proceedings 2018/83736 are paid;

 

(b) The costs payable pursuant to UCPR r 42.20 payable as a result of the judgment of McCallum J on 8 July 2018 in respect of proceedings 2018/87917 are paid;

 

(c)   The costs ordered by this judgment to be paid in proceedings 2018/248745 are paid; and

 (d)   The costs ordered by the judgment to be paid in proceedings 2018/258386 are paid.

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where court dismissed two previous equity and defamation proceedings in which plaintiff sought injunctions and damages for personal injury by reason of publication of alleged defamatory material – where plaintiff sought identical relief in respect of same publication by way of two further proceedings and naming parent company of defendant – UCPR r 13.4

 

DEFAMATION –remedies – compensatory damages – injury to health – whether damages for personal injury available – standing to sue - bankrupts

 

ESTOPPEL – res judicata – whether plaintiff’s further claim determined by previous judgment – issue estoppel – where previous judgement given on basis that only first defendant was publisher – Anshun estoppel – complaint about breach of privacy – whether cause of action recognised for breach of privacy – if claim available it should have been brought in earlier proceedings

 

COSTS – indemnity costs – circumstances where indemnity costs will be awarded - gross sum basis – circumstances where appropriate – multiple proceedings claiming same relief – unnecessary interlocutory applications – whether plaintiff’s bankruptcy prevented costs order being made

  CIVIL PROCEDURE – stay of proceedings – inherent power – abuse of process – whether plaintiff should be restrained from commencing further proceedings arising from same or similar facts until defendants’ costs paid

Legislation Cited:

Bankruptcy Act 1966 (Cth) ss 58, 60
Civil Procedure Act 2005 (NSW) ss 67, 98
Legal Profession Uniform Law Application Regulation 2015 (NSW) reg 35
Supreme Court Rules 1970 (NSW) r 6
Uniform Civil Procedure Rules 2005 (NSW) rr 12.4, 12.10, 13.4, 15.2, 42.20, 51.9
Vexatious Proceedings Act 2008 (NSW) s 8

Cases Cited:

ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Adriana Kostov v Nationwide News Pty Limited [2018] NSWSC 1289
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 1307
Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21
Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335
Coshott v Parker (No 3) [2015] NSWSC 1195
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Doe v ABC [2007] VCC 281
Fraser v Commissioner of Taxation (1996) 69 FCR 99
Gacic v John Fairfax Publicatons Pty Limited [2005] NSWSC 1210
Giller v Procopets (No 2) (2008) 24 VR 1
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Hamod v State of New South Wales (No 13) [2009] NSWSC 756
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213;
Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364
Kostov v Amelie Housing [2018] NSWSC 1800
Kostov v Nationwide News Pty Ltd [2018] NSWSC 858
Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794
Maynes v Casey [2011] NSWCA 156
Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133
Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Re McCauley; Ex parte Fraser (1995) 61 FCR 251
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Sands v State of South Australia [2013] SASC 44
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811
Stankovic v State of NSW (No. 2) [2016] NSWSC 335
Styles v Clayton Utz (No.3) [2011] NSWSC 1452
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Tame v State of NSW (2002) 211 CLR 317; [2002] HCA 35
Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28
Webster v Super Smart Strategies Pty Ltd; Courtney v Super Smart Strategies Pty Ltd [2017] NSWSC 531
Wilson v Ferguson [2015] WASC 15
Young v Hones (No 3) [2014] NSWSC 499
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

Texts Cited:

Douglas, Michael, ‘Characterisation of Breach of Confidence as a Privacy Tort in Private International Law’ (2018) 41(2) University of New South Wales Law Journal 490

Category:

Procedural and other rulings

Parties:

Adriana Kostov (Plaintiff)
Nationwide News Pty Ltd (First Defendant)
Newscorp (United States) (Second Defendant)

Representation:

Counsel:
P Lonergan (adjournment application only otherwise plaintiff in person by submissions)
M Lewis (First & Second Defendants)

  Solicitors:
Self-represented (Plaintiff)
Gina McWilliams (First & Second Defendants)

File Number(s):

2018/258386 & 2018/248745

Publication restriction:

Nil

Judgment

1. On 15 March 2018 an article was published in the Daily Telegraph and online concerning a reference the plaintiff had written for a person with whom she had been in a relationship, Christian Iral. Mr Iral had pleaded guilty in the District Court to supplying an undercover police officer with 17 grams of cocaine. In the Daily Telegraph the article was headlined: “Hedging a bet: Fund Director’s plea for coke-dealing boyfriend”. The online article was headlined: “Cocaine dealer jailed as girlfriend director writes heartfelt letter to judge”.

2. The plaintiff commenced proceedings (2018/83736) in the Equity Division against Nationwide News Pty Ltd (the First Equity Proceedings) in which she sought ex parte relief for the removal of the online article. Those proceedings came before Kunc J on 16 March 2018, and his Honour refused the interlocutory relief. The plaintiff filed a notice of motion to set aside Kunc J’s orders. That motion was dismissed by Hallen J on 19 March 2018.

3. On 19 March 2018 the plaintiff filed proceedings (2018/87917) in the Defamation List of the Common Law Division (the Defamation Proceedings) claiming damages against Nationwide News for the publication of the articles. The loss and damage said to have been suffered by the plaintiff was set out in paragraph 29 of the amended statement of claim filed 16 April 2018. Paragraph 29 read as follows:

As a result of the publication of a Matter Complained Of, the plaintiff:

a)   has suffered serious damage to her personal and professional reputation;

b)   has suffered emotional, psychological and physical damage to her health, being hospitalised as a result of the publication of the matter complained of;

c)   has wasted time, and costs to her employer, having to address this matter;

d)   and her family have endured humiliation, ridicule and abuse, and became unwell, as a result of the publication of the matter complained of.

4. By an email dated 26 April 2018, the plaintiff accepted that she ought to have commenced the First Equity Proceedings in the Defamation List of the Common Law Division.

5. On 8 May 2018 Registrar Walton in the Equity Division ordered that the First Equity Proceedings be transferred to the Defamation List and be heard concurrently with the Defamation Proceedings. The pleadings in the Defamation Proceedings were ordered to be the pleadings in support of the First Equity Proceedings.

6. On 8 June 2018, after a contested hearing about whether the plaintiff’s imputations were reasonably capable of arising and whether the article met the threshold of seriousness, McCallum J dismissed the Defamation Proceedings on both bases: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858.

7. On 20 July 2018 McCallum J ordered that the summons in the First Equity Proceedings be dismissed. Her Honour ordered that the plaintiff was to pay the defendant’s costs of the First Equity Proceedings.

8. On 15 June 2018 the plaintiff filed a Notice of Intention to Appeal from the judgment of McCallum J in the Defamation proceedings. Pursuant to UCPR r 51.9 an applicant who has filed a Notice of intention to Appeal must file a Notice of Appeal within 3 months of the material date, which here was 8 June 2018. Accordingly, the Notice of Appeal ought to have been filed by 8 September 2018.

9. The plaintiff sent a letter to the Court of Appeal dated 7 September saying:

I wish to advise the Court that I still do intend to file the said appeal, it is simply due having to deal with ill-health the past few months and a confirmation I require surgery, that I have not, however, I will endeavour to file the appeal within the next 4 weeks.

At the time of the hearing of the present motions, no appeal had been filed. On 15 November 2018 after judgment in this matter had been reserved, the plaintiff filed a Summons Seeking Leave to Appeal from the judgment of McCallum J in both the Defamation Proceedings and the First Equity Proceedings, including her Honour’s subsequent costs order. I note that the Notice of Intention to Appeal was filed only in respect of the Defamation Proceedings.

10. On 13 August 2018 the plaintiff filed a summons (2018/248745) in the Equity Division (the Second Equity Proceedings) seeking the following relief against Nationwide News Pty Ltd:

(1)   Removal of article “Cocaine dealer gaoled as girlfriend director writes heartfelt letter to Judge”, and “Fund director’s plea for coke dealing boyfriend”, and any associated publications of the defendant, from the worldwide web; and

(2)   Injunction from the further publication of the material in (1) above, by all subsidiaries of the defendant.

11. The plaintiff brought those proceedings before Rein J in the Equity duty list on an ex parte basis. On 16 August 2018 Rein J refused the plaintiff’s application for ex parte relief: Adriana Kostov v Nationwide News Pty Limited [2018] NSWSC 1289. In his Honour’s judgment Rein J noted at [2]

… Since the matter appeared to have the flavour of a claim in defamation, Ms Kostov was informed that she should approach the Defamation List Judge or the Common Law Duty Judge in accordance with the Supreme Court Practice Note SC CL 4, but Ms Kostov asserted that the matter was not one based on defamation, but “personal harm”.

12. Justice Rein said further:

[9]   The Affidavit is completely silent as to the fact that Ms Kostov commenced proceedings against Nationwide News Pty Limited in the Common Law Division of this Court, asserting that the Article was defamatory of her. Those proceedings (2018/83731-1) were dismissed by McCallum J on 8 June 2018: see Kostov v Nationwide News Pty Limited [2018] NSWSC 858, as her Honour found that the imputations pleaded by Ms Kostov were not reasonably capable of arising from the Article, and, even if they did, they did not meet the threshold of seriousness required.

[10]   Nor does the Affidavit refer to the fact that she has also previously commenced proceedings against Nationwide News Pty Limited in this division (2018/83736-1), proceedings of which I have become aware following enquiries made by my Tipstaff. In those proceedings, also commenced on 15 March 2018, Ms Kostov by Summons sought the identical relief which she now seeks in these proceedings. In that matter, Ms Kostov also sought ex parte relief and the matter was dealt with as follows, it appears:

(1)   Ms Kostov’s application for ex parte relief was refused by Kunc J on 16 March 2018;

(2)   Ms Kostov’s Notice of Motion filed in the Equity proceedings on 16 March 2018 seeking to set aside the orders of Kunc J made on 16 March 2018 was dismissed by Hallen J on 19 March 2018; and

(3)   On 20 July 2018, McCallum J dismissed the Equity proceedings in a judgment of that date, concluding that Ms Kostov’s reasons for seeking the transfer of the Equity proceedings back to the Equity Division was:

“… related to events that have occurred since the publication of the matters complained of, but which do not appear to establish any separate cause of action outside the claim for defamation.

Ms Kostov has made strong claims in respect of consequences that have flowed from the publication of the matter complained of, but none has been articulated in any way so as to suggest that there is a cause of action which might sustain the extant Equity Division proceedings.

Accordingly, I am not persuaded that there is any utility in transferring those proceedings back to the Equity Division. In my view it follows inexorably from my judgment of 8 June 2018 that the Equity Division proceedings must also be dismissed.”

[11]   It follows that the summons which the Plaintiff now seeks to agitate has, on the face of matters, already been dealt with and dismissed. If Ms Kostov was unhappy with that dismissal, it was open to her to appeal her Honour's decision. …

…

[14]   Therefore, having regard to:

(a)   The fact that Ms Kostov has commenced proceedings in defamation already in respect of the Article, which have been dismissed, and that she has previously commenced Equity proceedings for precisely the same relief, which proceedings have also been dismissed;

(b)   The absence of any clear articulation of the basis (other than defamation) on which Ms Kostov claims to be entitled to the relief which she seeks;

(c)   Ms Kostov’s failure to mention the defamation proceedings or the Equity proceedings in the Affidavit or in her oral submissions in support of the relief; and

(d)   The fact that the relief which Ms Kostov seeks on an ex parte basis is, in effect, the final relief sought in the Summons;

Ms Kostov’s application for ex parte relief is refused.

(emphasis added)

13. On 22 August 2018 the plaintiff filed a statement of claim in the Common Law Division and indicated that the matter was in the Personal Injury List (2018/258386) (the Personal Injury Proceedings). I note that there is no list called the Personal Injury List. She named Nationwide News Pty Ltd as the first defendant, Newscorp (United States) as second defendant, and Alphabet Inc t/a Google LLC as third defendant.

14. On 20 September 2018 she filed an amended statement of claim in those proceedings claiming damages for loss and injury suffered, aggravated damages, an “order ceasing the publication from further publication”, and costs. The pleading made reference to the publication of the article and her repeated requests that the article be taken down from the internet. The amended statement of claim went on to plead that the publications have caused her personal injury which she detailed as emotional injury, psychiatric injury (nervous shock) and physical injury. She also appeared to base her claim on a breach of privacy which she claimed had caused her harm, damage and loss.

15. On 22 August 2018 the defendant in the Second Equity Proceedings filed a notice of motion seeking that the summons be summarily dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW), that the plaintiff pay the defendant’s costs on an indemnity basis and:

(3)   That the plaintiff shall not communicate with any officer or employee of the defendant, or any of its related bodies corporate, except for its senior legal counsel, Gina McWilliams.

16. On 24 September 2018 the first and second defendants filed a notice of motion seeking summary dismissal of the Personal Injury Proceedings pursuant to UCPR r 13.4 and for the following orders:

(2) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), and in lieu of assessed costs, the Plaintiff shall pay the First and Second Defendant’s costs on an indemnity and gross sum basis, such amount to be determined by the Court.

(3) Pursuant to s 51 (sic) of the Civil Procedure Act 2005 (NSW) and/or UCPR r 12.4, the plaintiff shall not commence any other proceedings against News Australia, the first defendant or the second defendant (the News Corp Australia entities), any related body corporate of the News Corp Australia entities or any servant or agent of the News Corp Australia entities, concerning the article entitled “Hedging a bet: Fund Director’s plea for coke-dealing boyfriend”, until the plaintiff pays the costs of:

(a)   News Australia Pty LTD ACN 007910330 (News Australia) in NSW Supreme Court matter number 2018/00083736;

(b)   The first defendant in NSW Supreme Court matter number 2018/00087917;

(c)   The first defendant in NSW Supreme Court matter number 2018/00248745; and

(d)   The first and second defendants in these proceedings.

17. On 27 August 2018 the Second Equity Proceedings came before Registrar Walton. Registrar Walton fixed the defendant’s notice of motion filed in those proceedings before the Applications List Judge in the Equity Division on 11 September 2018. The Registrar made this order:

(3) Pursuant to s 61 CPA and UCPR 2.1 the plaintiff is to communicate about these proceedings only with lawyer (sic) appearing on notice of appearance filed by defendant on 20/8/18 in this matter, being Gina McWilliams.

On that occasion the plaintiff was represented by a solicitor, Mr Yoshida, and she was not present in Court.

18. Those proceedings came before Rees J on 11 September 2018. Her Honour noted that there was no appearance for the plaintiff. Her Honour ordered that the proceedings be transferred to the Common Law Division to run in the list with the Personal Injury Proceedings.

The hearing of the motions

19. Both the Personal Injury Proceedings and the Second Equity Proceedings came before Registrar Bradford in the Common Law Division on 11 October 2018. The Registrar fixed for hearing the notices of motion filed in each of those proceedings for summary dismissal on 30 October 2018. In the Second Equity Proceedings the Registrar noted that the plaintiff had filed submissions on 10 September 2018. In the Personal Injury Proceedings he ordered that the plaintiff was to file any written submissions that were intended to be relied upon at the hearing of the motions by 23 October 2018.

20. In the Second Equity Proceedings the Registrar gave leave to the defendant to file an amended notice of motion. That amended notice of motion was filed on 19 October 2018. It contained two additional prayers for relief as follows:

(4)   Declaration that the plaintiff is guilty of contempt of court for breach of the orders of the Court made in these proceedings on Monday, 27 August 2018 pursuant to the statement of charge subscribed to this notice of motion.

(5)   An order that the plaintiff be punished for contempt of court specified in the statement of charge subscribed to this notice of motion.

21. On Friday, 26 October 2018 I directed my Associate to email the plaintiff requiring her to forward her submissions in both motions to my Associate as soon as possible on that day. In reply, the plaintiff requested that the hearing be adjourned, and that only directions be made on 30 October. My Associate, at my direction, informed the plaintiff that the motions remained listed for hearing.

22. That resulted in an email from the plaintiff on Friday afternoon requesting the matter be listed at 2pm on Monday, 29 October so that the plaintiff could seek an adjournment of the hearing of the motions the following day. The parties were informed first thing Monday, 29 October that the matters were listed at 2:00pm on that day. At 2:00pm there was no appearance for the plaintiff. Instead, at 1:59pm my Associate received an email from the plaintiff requesting to appear by telephone. Some six minutes earlier the plaintiff by email forwarded to my Associate what were said to be her written submissions, although she described them as brief and requested a three week adjournment so that she could address all matters correctly.

23. I declined to permit the plaintiff to appear by telephone. In the absence of an appearance by the plaintiff, her foreshadowed application to adjourn the hearing was refused and costs were reserved.

24. When informed of what had transpired, the plaintiff forwarded a number of emails to my Associate requesting amongst other things permission to appear by telephone on 30 October. No adequate reason was put forward for that request other than a statement that the plaintiff could not appear in person to argue a motion for which she was not properly prepared. I declined to permit the plaintiff to appear by telephone.

25. When the motions were called for hearing on 30 October, Mr P Lonergan of counsel appeared for the plaintiff. He informed me that his instructions were limited to seeking an adjournment of the hearing of the motions for a week to give the plaintiff time to address properly the issues raised by the motions. There was no evidence adduced on the plaintiff’s behalf to explain why she had not prepared for the hearing prior to that time. I refused the adjournment. However, because part of the claim being made was that the plaintiff should be found guilty of contempt, I indicated that, with respect to that aspect of the motion, I would give the plaintiff a further period of time in which to forward written submissions to answer the contempt charge. I reserved my decision in the matter.

26. I refused the adjournment for the following reasons. The motion in the Second Equity Proceedings was filed on 22 August 2018. The motion in the Personal Injury Proceedings was filed on 24 September 2018. Those dates were, respectively more than two months and one month prior to the date fixed for hearing those motions. The motions both sought as their principal relief the dismissal of the proceedings pursuant to UCPR r 13.4. The motion in the Second Equity Proceedings has been fixed for hearing on 11 September. It did not proceed, seemingly, because the plaintiff failed to appear.

27. The Common Law Registrar noted, on 11 October, that the plaintiff had filed submissions in relation to the motion in the Second Equity proceedings on 10 September. She was given until 23 October to file submissions in relation to the motion in the Personal Injury Proceedings. The only additional relief sought in those proceedings was for an order that the plaintiff not commence any further proceedings until costs were paid in the four proceedings she had already commenced.

28. In all of the circumstances, I considered that the plaintiff had had ample time to file and serve her submissions. The only material provided by the plaintiff by way of explanation for not preparing her submissions and for seeking an adjournment was that she was in hospital from 13 to 14 October. That material was a copy of a document entitled “ED Discharge Referral” from Royal Prince Alfred Hospital. The attendance date was said to be “14/10/2018”. That document was sent under cover of an email forwarded to my Associate. Since the plaintiff did not appear on 29 October at the time she requested I list the proceedings, and since she was not present in court on 30 October when her counsel appeared, there was no opportunity for enquiries to be made about how her time in hospital prevented her either from preparing her submissions or from attending at court to make submissions on the motions. The High Court made clear in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [103] the importance of an explanation where a party seeks the exercise of discretion, for example, to amend or adjourn proceedings.

29. The plaintiff has a law degree, and appears to work for a solicitor in some sort of capacity as a legal clerk. She would understand the need to comply with court timetables, and that parties are expected to proceed on the day matters are fixed for hearing. The extension of time in relation to the contempt charge was an indulgence because of the seriousness of a contempt charge.

30. Despite my otherwise refusing to adjourn the motions, Mr Lonergan remained in court at the bar table for the duration of the hearing of the motions.

31. The plaintiff filed written submissions in relation to the contempt charge by the stipulated date, 16 November 2018. I listed the proceedings for further mention on 23 November 2018. The plaintiff appeared on that occasion in person, and I permitted her to make whatever further submissions she wished to make on the contempt issue. I then again reserved my decision.

32. Subsequent to reserving my decision, I became aware that other contempt proceedings against the plaintiff, decided at first instance against her, had been argued in the Court of Appeal with the decision on that appeal reserved by that court. I relisted the present proceedings, and informed the parties that I considered it prudent to await the Court of Appeal’s decision before determining that part of the present motion in the Second Equity Proceedings dealing with contempt. Accordingly, this judgment deals only with the other relief sought in that notice of motion, and the relief sought in the notice of motion in the Personal Injury Proceedings.

The plaintiff’s bankruptcy

33. A preliminary issue arose from the fact that an affidavit of the defendants’ solicitor sworn 29 October 2018 disclosed that the plaintiff’s estate was sequestrated by an order of the Federal Court on 18 July 2018. Section 58(3) of the Bankruptcy Act 1966 (Cth) provides:

(3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

34. The section has two potential implications for the present motions. First, the defendants seek a costs order which would involve determination by the Court of the amount of costs payable. Secondly, it must be determined whether advancing the motions is taking any fresh step in proceedings which the subsection proscribes.

35. The latter question may be readily resolved. Paragraph (b) is not engaged because the proceedings brought by the plaintiff, in which the present motions have been filed, are not legal proceedings “in respect of a provable debt”: Re McCauley; Ex parte Fraser (1995) 61 FCR 251 at 254. The proceedings themselves involve a personal injury or wrong done to the bankrupt within the meaning of s 60(4) of the Bankruptcy Act: Moss v Eaglestone (2011) 83 NSWLR 476 at [8].

36. The pursuit of costs in the motions is a different matter. It is governed by paragraph (a). However, the obtaining of a costs order itself will not contravene that paragraph. In Fraser v Commissioner of Taxation (1996) 69 FCR 99 Beaumont J (Black CJ and Tamberlin J agreeing) said at 111:

As the High Court observed in Clyne [Clyne v Deputy Commissioner of Taxation (No 3) (1984) 154 CLR 589] (at 595) a distinction should be drawn, for the purposes of s58(3), between the "enforcement" of a remedy against the property of the bankrupt, on the one hand, and the commencement or the taking of a fresh step in a "legal proceeding", on the other. An obvious example of the former would be to levy execution against the lands or goods of the bankrupt. In this connection, the words "enforcement" of a "remedy" should, I think, be interpreted as having their settled meaning. In R v Bates [1982] 2 NSWLR 894, Samuels JA said, of "enforce" (at 895):

... I would harbour considerable doubt, as a matter of grammar or syntax, whether the word `enforced' extends to cover the institution of proceedings for breach of a provision of a statute. The relevant meaning assigned in the Shorter Oxford English Dictionary is that to enforce means `to compel observance of'. That is, I think, its ordinary meaning...

With respect, I agree. Moreover, it will be recalled that the notion of "enforcement" was not used in s60(2) when considered by Clyne J in White [Re White (1960) 20 ABC 11]. This may be a basis for distinguishing White. But, in any event, the doubts cast in Clyne upon the approach taken in White, when considered in the context of the settled meaning of the phrase "enforce a remedy", lead, in my opinion, to the conclusion that the absolute bar imposed by s58(3)(a) should be construed so as to apply only to the enforcement of remedies, including extra- curial remedies, as distinct from the institution of legal proceedings and their maintenance up to the point of recovery of judgment. The institution and maintenance of such proceedings will, of course, be subject to the different constraints imposed by s58(3)(b), unless leave be granted under that provision.

37. The defendants are not, therefore, precluded from seeking and obtaining a costs order. They may, however, not enforce that order.

Summary dismissal

The Personal Injury Proceedings

38. The defendants submitted that the matters in each of the Second Equity Proceedings and the Personal Injury Proceedings have already been determined by the judgment of McCallum J. The plaintiff should not be entitled to maintain those proceedings because to do so would offend the principles of res judicata, issue estoppel and Anshun estoppel, and amounts to an abuse of process.

39. After the plaintiff filed her amended statement of claim in the Defamation Proceedings, the defendant wrote setting out the objections to the amended statement of claim as required by the Defamation Practice Note. When dealing with the issue of damages the solicitors for the defendant objected on the following basis:

3.9   As to paragraph 29 of the ASOC, we note that you claim loss and damage for "emotional, psychological and physical damage". We assume that such loss and damage is a claim under the head of general damages. Please let us know whether our assumption is correct.

3.10   To the extent that our assumption at 3.9 is incorrect:

(b)   Please provide all the facts, matters and circumstances that you will rely upon to establish a claim for special damages.

(c) In so far as you claim special damages for "emotional, psychological and physical damage" to your health by way of special damages, please provide a "statement" of injuries as required by UCPR 15.12: see Styles v Clayton Utz (No.3) (2011) 255 FLR 364.

40. The plaintiff responded on 11 May 2018. In relation to damages she said the following:

I confirm that emotional, psychological and physical are three separate heads of damage.

A statement of injuries will be provided, however, for the avoidance of doubt:

a)   Hospitalization and detention under the Mental Health Act, is the highest, and most severe form of emotional, psychological, and physical harm, possible;

b)   My resultant emotional behavior, emailing the Board, and others, asking for assistance, reflects the damage in (a) above;

c) My sleepness nights, communicating with my ex-employer, and family, and concerned others, reflects the damage in (a) above;

d) My offer to resign from my employment, for feeling not worthy of employment, and my employer's assurance that I did nothing wrong, reflects the damage in (a) above;

e) My resultant ill-health, rendering the Sydney CBD Medical Centre ruling me unwell to work for a 14 day period, reflects the damage in (a) above;

f) I have made over 14 calls to the mental heath Line for support after the publication of the Matter Complied Of.

41. Damages for personal injury caused by the publication of defamatory material may be claimed in a defamation action: Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 45. If such damages are claimed a plaintiff is required to comply with UCPR r 15.12 by filing a statement of particulars: Styles v Clayton Utz (No.3) [2011] NSWSC 1452 at [221]-[222].

42. In the Personal Injury Proceedings the plaintiff pleads the publication of the article and that she has repeatedly requested that the online article be removed by the third defendant. She pleads that the publication both in the print edition and online caused her personal injury. Paragraph 14 pleads against the second defendant as follows:

The second defendant, is the parent company, of the first defendant, as is aware of the Initial Event [the publication in the Daily Telegraph] and Continuing Event [the online publication], and loss and harm, suffered as result. (sic)

43. She then pleads the injury and particulars of injury as follows:

Injury Suffered

21   As a result of the Initial Event, and Continuing Event, the Plaintiff has suffered:

a.   Emotional injury;

b.   Psychiatric injury (Nervous Shock)

c.   Physical injury

d.    Injury to general life, and well-being

Particulars of Injury

22   The Plaintiff has suffered psychiatric injury in the form of:

a.   Nervous shock, and admission to St Vincent's Hospital on 15th March 2018, the day of the Initial Event;

b.   Ongoing depression, anxiety as a result of the Continuing Event

c.   Loss of Self-worth, and self esteem, as a result of the Initial Event, feeling like a failure, visually depicted as having a fall from grace.

d.   Ongoing Loss of Self-worth, and self esteem, as a result of the Continuing Event

23   The Plaintiff has suffered emotional injury, in the form of:

a.   The distress to herself, and her family, as a result of the publication of the Initial Event;

b.   The daily reminders, online, of the Initial Event, via the Continuing Event,

c.   Being subjected to ridicle (sic), judging and shame, by others as a result of the Continuing Event

24   The Plaintiff has suffered physical injury in the form of:

a.   Headaches, migraines and reduced concentration, as a result of the Initial Event;

b.   Nausea, stomach pain, loss of appetite as a result of the Initial Event

c.   Sleeplessness, insomnia, fatigue, as a result of the Initial Event

d.   Ongoing headaches, migraines and reduced concentration as a result of the Continuing Event

e.   Ongoing nausea, stomach pain, loss of appetite as a result of the Initial Event

f.   Ongoing sleeplessness, insomnia, fatigue as a result of the Continuing Event

g.   Internal bleeding, polyps and discomfort, as a result of the Initial and Continuing Event.

25   The Plaintiff has suffered injury to general life and wellbeing in the form of:

a. Time, and expense spent, in asking for the Initial Event, and Continuing Event, to be removed, and cease causing injury;

b.   Withdrawal from professional and society, due to the Initial and Continuing Event;

c.   Withdrawal from family and friends, due to the Initial and Continuing Event;

d.   Loss of enjoyment of life, and normal professional and social activities

e.   Disruption to work performance & loss to employer

f.   Damage to personal relationships with family and friends and future romantic relationships

44. In the statement of particulars filed in those proceedings the plaintiff again lists both her physical and psychological injuries said to have been caused by the publications.

45. In Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 the High Court set out principles concerning res judicata, issue estoppel, Anshun estoppel and abuse of process as follows:

[20]   An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense.

[21]   Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.

[22]   Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

[23]   The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction – and none has been suggested – one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.

[24]   To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

[25]   Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

[26]   Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

46. In my opinion, the claim made by the plaintiff in the Defamation Proceedings, that the publication of the article caused her personal injury, was determined adversely to her in the judgment of McCallum J. That was a final judgment that quelled the controversy between the plaintiff and the first defendant. The rights and obligations as between the parties merged in that judgment. There is a res judicata as a result of that judgment. The bringing of the Personal Injury Proceedings in that way constitutes an abuse of process because it raises the same controversy for determination again. The final judgment of McCallum J may not be reopened except as is provided by the appellate system. That is part of the principle of finality: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]-[35].

47. In circumstances where a res judicata or issue estoppel is found, a claim in breach of those principles may be dismissed summarily: Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502 at 510.

48. The plaintiff cannot step around the dismissal of the Defamation Proceedings by an argument that she now claims on a different cause of action such as negligence. In Gacic v John Fairfax Publicatons Pty Limited [2005] NSWSC 1210, the plaintiffs sued for defamation and injurious falsehood on the basis of an unfavourable restaurant review published in a newspaper. Those proceedings went to trial and the claim failed completely. The plaintiff then pleaded a claim in negligence and contract based on the same publication. The defendant applied to strike out the further claim.

49. Justice James made reference to what the High Court said in Sullivan v Moody (2001) 207 CLR 562; (2001) HCA 59 at [53]-[55]. His Honour then said:

[32]   These remarks by the High Court in Sullivan v Moody were referred to by a number of judges in the later High Court decision of Tame v New South Wales. In Tame a police officer in preparing a report of a motor vehicle accident in which the plaintiff had been involved mistakenly recorded that the plaintiff had had a blood alcohol level of 0.14, whereas in fact the plaintiff had had a nil blood alcohol level. The plaintiff had become obsessed about the mistake in the report and had developed a psychiatric disorder. The High Court held that the police officer had not owed a duty to the plaintiff to take reasonable care to avoid psychiatric injury to her.

[33]   At 335 (28) Gleeson CJ said:-

“Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence….”

[34]   At 343 (58) Gaudron J said:-

“The second matter which indicates that Acting Sergeant Beardsley did not owe a duty of care to Mrs Tame is the fact that the direct cause of her psychiatric illness was not the inaccurate recording of her blood alcohol level, but its communication to others. Thus, in this case as in Sullivan v Moody, ‘there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like’. And as in Sullivan v Moody, ‘[t]o apply the law of negligence in the present case would resolve that competition on an altogether different basis’. At the very least, the law of negligence with respect to psychiatric injury ought not be extended in a disconformity with other areas of the law”.

[35]   At 361 (123) McHugh J said:-

“In determining whether Acting Sergeant Beardsley owed a duty of care to Mrs Tame, it is proper to take into account - quite apart from the issue of reasonable foreseeability - that the law of defamation appears a more appropriate medium for dealing with the facts of her case than the law of negligently inflicted nervous shock. Her action arises out of a communication to a third party, her concern is with her reputation and the law of defamation has various defences that reconcile the competing interests of the parties more appropriately than the law of negligence. This Court has already taken the view that, independently of policy issues relevant to the interests of the parties and persons like them, the need for the law to be coherent is a relevant factor in determining whether a duty exists. In Sullivan v Moody … , the Court said that coherence in the law was a relevant factor in determining whether a duty of care existed. In Sullivan, the Court held that officers of the Department of Community Welfare owed no duty of care to a person affected by a communication made as the result of investigating, under a statutory power, a sexual assault allegation”.

[36]   …

[37]   At 425 (323) Callinan J said:-

“Whilst it may be accepted that a plaintiff is entitled to avail herself of whatever remedies are available to her, it is important that a decision and the reasoning leading to it, in an unusual case, which this one is, be in harmony with, so far as is possible, available related causes of action, and the common law as a whole or, as it was put by this Court in Sullivan v Moody …., that they not offend the ‘coherence of the law’. The facts of this case might conceivably have given rise to actions in negligent misstatement (if that action is not confined to claims for economic loss) and defamation. That these causes of action may also be available on the facts of the case, and would then be governed by special rules affected by policy considerations, is relevant to the question whether the appellant should recover damages for ‘nervous shock’ .on the basis of those facts…”

[38]   At 426 (325) Callinan J said:-

“Many controls and special defences, both statutory and at common law, ordinarily operate to restrict claims in defamation; for example, defences of qualified and absolute privilege, and the need for a plaintiff to prove absence of good faith on the part of the defendant”.

50. His Honour made reference to some cases in a variety of jurisdictions which suggested that the law of negligence had no role to play where publication of material was alleged. His Honour then went on to say:

[40]   In the present case I consider that the core of the plaintiffs’ complaints is that they were injured in their reputation and feelings by what was communicated about their restaurant by the defendants to third persons, that any claim in negligence (or breach of contract) would intersect with the law of defamation with its well established principles for striking a balance between freedom of expression and injury to reputation and feelings and that to permit the plaintiffs to rely on a cause of action in negligence (or breach of contract) would be to destroy, and not preserve, coherency in the law.

[41]   As I have previously noted, counsel for the plaintiffs sought to distinguish what was said in Sullivan v Moody and Tame v New South Wales and what was said and held in Sattin v Nationwide News Pty Ltd, on the basis that, in the present case, the cause of action in defamation had, subject to the appeal to the Court of Appeal, failed, whereas in Sattin the claim in defamation was still subsisting and Levine J had observed in his judgment that there was no defence to the claim in defamation, such as qualified privilege, comment or justification.

[42]   However, it seems to me, as a matter of principle, that, if the gist or core of a plaintiff’s complaint is that the plaintiff has suffered injury to his or her reputation and injury to his or her feelings by reason of what the defendant communicated or published about the plaintiff to third persons, the plaintiff’s remedy, if any, lies in defamation (or injurious falsehood) and not in negligence or breach of contract and it makes no difference, if by reason of the operation of any of the controls or defences which apply to claims in defamation, no claim in defamation could have been brought or a claim in defamation which was brought has failed. To hold otherwise would be to destroy, and not to preserve, coherency in the law and the balances which have been struck in the law of defamation between damage to reputation and freedom of expression.

51. The cause or causes of action upon which the plaintiff relies in the Personal Injury Proceedings are not pleaded nor are they easy to discern. The plaintiff has entitled the proceedings in the “Personal Injury List”. Most but not all personal injury proceedings are based on trespass, negligence or some breach of statutory duty. However, it is apparent from the authorities to which I have already referred that damages for personal injury may be claimed in defamation proceedings.

52. The plaintiff does not assert that the defendants owed her a duty of care or that the defendants breached any such duty resulting in injury to her. It seems doubtful in the light of what appears in Sullivan v Moody and Tame v State of NSW (2002) 211 CLR 317; [2002] HCA 35 that such a pleading would be maintainable. Further, those cases and Gacic mean that the plaintiff does not have a cause of action in negligence where personal injury is claimed as a result of a publication.

53. Those matters lead to the conclusion that it is likely the cause of action relied upon in the Personal Injury Proceedings is in fact a claim for damages for defamation. If that is so, the principle of res judicata operates because of the judgment of McCallum J in the Defamation Proceedings. Those proceedings were dismissed after a hearing. There is a judgment in favour of the first defendant. The rights and obligations of the parties arising from the publication of the article have merged in that judgment. Those rights said by the plaintiff to have been infringed in the Defamation Proceedings included damages for personal injury in the same way as that claim is made in the Personal Injury Proceedings.

54. If the cause of action in the Personal Injury Proceedings is, despite the inadequate pleading, a claim in negligence, such a claim must fail because the law does not recognise a cause of action in negligence from the publication of material said to cause injury and damage.

55. In my opinion, as far as the claim against Nationwide News is concerned there is a res judicata arising from the judgment of McCallum J of 8 June 2018.

56. As far as the second defendant “New Corp (United States)” (sic) is concerned, the plaintiff alleges that it is a parent company of the first defendant and is aware of the publication and the continuing publication and the loss and harm suffered as a result. Simply being a parent company and being aware of the publication together with the loss and harm provides no basis for a cause of action against the second defendant. The plaintiff pleads, however, that both the first and second defendants are publishers of the publication. Justice McCallum in her judgment of 8 June 2018 found that the publisher was the first defendant, Nationwide News Pty Ltd. By virtue of McCallum J’s finding that Nationwide News was the publisher, there is an issue estoppel against the plaintiff, whether by application of the extended principle in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 or otherwise.

57. On the other hand, if, in some manner, the second defendant was also the publisher, that is clearly a claim which ought to have been made in the Defamation Proceedings. An Anshun estoppel will arise because a claim against the second defendant was so relevant to the subject matter of the Defamation Proceedings that it was unreasonable not to have pleaded that claim against the second defendant in those proceedings: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602.

58. In those circumstances the claim made for damages for personal injury in the Personal Injury Proceedings is doomed to fail.

Breach of privacy

59. The plaintiff included the following pleading in the Personal Injury Proceedings under a heading “Breach of Privacy”:

31.   The Plaintiff submits that all persons, should be entitled, to a degree of privacy, particularly in matters such as these, where, privacy was requested.

32.   The Plaintiff repeats the injury and damage pleaded above, and submits that by invading her reasonable request for privacy, the Defendants have caused the Plaintiff serious damage and harm in the form of the personal injury pleaded above, in both the initial and Continuing Event.

33.   The Plaintiff submits she made her request for privacy prior to the Initial Event, and, further, during the Continuing Event, noting the invasion of her privacy was causing her harm and loss, which, has been ignored.

(Punctuation in original pleading)

60. It is not clear from this pleading if the plaintiff is asserting that a cause of action exists based on a breach of privacy, separate from any other claim she is making from the publication of the article.

61. I held in Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 at [37] that what the High Court said in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 (at [40]-[42] and [106]-[132] and [189]-[190]) would not appear to preclude the emergence of a tort for breach of privacy. I then made reference to three first instance decisions:

… In Grosse v Purvis (2003) Aus Torts Reports 81-706 Skoien J of the Queensland District Court found that there was such a tort (see at [421]-[447]). Heerey J in Kalaba v The Commonwealth [2004] FCA 763 thought that the weight of authority was, at that time, against the proposition that there was such a tort but in Gee v Burger [2009] NSWSC 149 McLaughlin AsJ thought at [53] that the matter was arguable.

62. In Doe v ABC [2007] VCC 281, the Victorian County Court awarded damages for breach of privacy in circumstances where the ABC was subject to a statutory duty not to identify the plaintiff as a victim of crime. This decision was distinguished and criticised by Kelly J in Sands v State of South Australia [2013] SASC 44:

[613]   The first observation I make about Doe is that in that case there was a duty owed to a victim of crime by virtue of the statute itself which establishes protection from publication by the media of the name or identity of any victim of crime. Here, there is no suggestion that there has been any publication by the police of the plaintiff’s name or identity by virtue of the making of the Forensic Procedures Act.

[614]   In my respectful view, the reliance by the Court in Doe on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd is misplaced. The ratio decidendi of the decision in Lenah is that it would require a further development in the law to acknowledge the existence of a tort of privacy in Australia. In my view, the statements of the majority in Lenah do not support the suggestion that the High Court in Lenah held out any invitation to intermediate courts in Australia to develop the tort of privacy as an actionable wrong.

(emphasis added)

63. In Giller v Procopets (No 2) (2008) 24 VR 1, counsel for the appellant contended that the trial judge erred by failing to consider authorities which supported the development of a tort of invasion of privacy. The Victorian Court of Appeal made reference to Lenah, and to cases in the United Kingdom and New Zealand which have considered whether or not such a tort is recognised. The Court did not, however, need to consider the existence of a tort for breach of privacy because it found that the plaintiff was entitled to equitable compensation for mental distress arising out of a breach of confidence; namely, the release of a videotape of sexual activities between a couple subsequently estranged: see especially, Ashley JA at [167]-[168] and Neave JA at [447]-[452]. In Wilson v Ferguson [2015] WASC 15 Mitchell J held that Giller could not be said to be plainly wrong.

64. The extent to which the juridical basis for breach of confidence might support its characterisation as an ‘equitable tort’ of misuse of private information has been the subject of recent academic debate: see, e.g., Douglas, Michael, ‘Characterisation of Breach of Confidence as a Privacy Tort in Private International Law’ (2018) 41(2) University of New South Wales Law Journal 490.

65. Whatever the position is with regard to developments in the equitable doctrine of breach of confidence, the plaintiff does not purport to sue on that basis. I note, however, Basten JA’s comment in Maynes v Casey [2011] NSWCA 156 where his Honour said at [34] that Lenah and Giller “may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence.”

66. In circumstances where no Australian superior court has recognised a generalised tort for breach of privacy, and where the plaintiff does not rely on the equitable doctrine of breach of confidence, the plaintiff’s interest in privacy is enforceable at law only so far as the particular way in which her privacy was invaded falls within the scope of the tort of defamation, on which basis these proceedings were commenced. In John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484, McColl JA said at [124]:

It is necessary, too, to bear in mind the role privacy issues play in the law of defamation. Australian common law does not recognise a tort of privacy, although some members of the High Court have tentatively acknowledged that such a tort may emerge, at least for individuals rather than corporations: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [132] per Gummow and Hayne JJ; at [335] per Callinan J. However it cannot be gainsaid that the right to privacy “is in a general sense one of the values” which underlies the tort of defamation: Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 (at [43]) per Lord Hoffmann (with whom Lord Nicholls of Birkenhead agreed).

67. In this way, the tort of defamation may be a legitimate vehicle for the enforcement of an interest in privacy. However, McCallum J held that the publication complained of was not reasonably capable of defaming her: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 at [13]. In any event, a claim for breach of privacy, if maintainable at all, was, as the plaintiff now asserts by this pleading, so relevant to the subject matter of the Defamation Proceedings that it was unreasonable for her not to have pleaded that claim in the Defamation Proceedings. An Anshun estoppel operates to prevent the claim now being made.

The Second Equity Proceedings

68. The claim in the Second Equity Proceedings is one simply for injunctions in relation to the same article. One injunction sought is for the removal of the article and the other is an injunction to prevent any further publication of it.

69. When these proceedings came before Rein J his Honour identified that the plaintiff had sought identical relief in the First Equity Proceedings where she had been unsuccessful in the first instance and again when she tried to have the orders of Kunc J said aside. That application was dismissed by Hallen J on 19 March 2018. When those First Equity Proceedings were transferred to McCallum J in the Defamation List, McCallum J held in her judgment of 20 July 2018:

Ms Kostov has made strong claims in respect of consequences that have flowed from the publication of the matter complained of, but none has been articulated in any way so as to suggest that there is a cause of action which might sustain the extant equity division proceedings.

Accordingly, I am not persuaded that there is any utility in transferring those proceedings back to the Equity Division. In my view it follows inexorably from my judgment of 8 June 2018 that the Equity Division proceedings must also be dismissed.

70. In commenting on those remarks of McCallum J, Rein J said at [11]:

It follows that the summons which the Plaintiff now seeks to agitate has, on the face of matters, already been dealt with and dismissed. If Ms Kostov was unhappy with that dismissal, it was open to her to appeal her Honour's decision. Ms Kostov informed me today, after I raised these matters with her, that she has lodged a notice of appeal both in relation to the defamation proceedings and in respect of the Equity proceedings. The relief which the Plaintiff seeks by the Summons today is a mandatory injunction, in effect, requiring the Defendant to remove material that has been published on the internet by the Defendant. It is said that this is not based on a claim that the Article is defamatory and it has not been made at all clear by the Plaintiff on what legal basis her claim is brought, other than that she feels upset and concerned about the Article remaining on the internet. It is not clear in what respect the claim differs, if at all, from the claims brought in Equity in March and which were on foot until 20 July 2018.

71. Of course, a Notice of Appeal had not, at the time the matter was before Rein J, been lodged in relation to either of the earlier proceedings. Rather, a Notice of Intention to Appeal had been filed in relation to the Defamation Proceedings.

72. No doubt, because his Honour was only asked to grant ex parte relief in those proceedings, his Honour did no more than refuse that relief. However, in the present circumstances, where it is sought to dismiss those proceedings, his Honour’s comments are relevant to the issue of whether those proceedings should be dismissed. His Honour noted that the relief claimed is the same as the relief claimed in the First Equity Proceedings which were dismissed. Such, with respect, is undoubtedly the case. That is sufficient to result in the Second Equity Proceedings being dismissed on the basis either of a res judicata, or as an abuse of process.

73. In any event, the Second Equity Proceedings are dependent upon the articles being established as defamatory, no other basis for the relief sought being demonstrated, and the plaintiff failed in that regard in the Defamation Proceedings where McCallum J held in Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 at [30] and [43]-[44]:

[40] … I am satisfied that none of the imputations specified in the amended statement of claim is capable of being carried by the matter complained of. Further, I am satisfied that the article is incapable of defaming Ms Kostov. The most the article is capable of saying is that the plaintiff made a heartfelt plea for leniency when her former boyfriend was sentenced for a serious drug offence. I do not think that meaning is capable of being regarded as defamatory.

…

[43]   If my conclusion is wrong that the matter complained of is incapable of defaming Ms Kostov, I consider that the claim must be dismissed on the basis that it fails to meet the threshold of seriousness. To the extent that the article focusses on Ms Kostov’s provision of support for the offender when he faced serious charges, it appears to be true: cf Farrow v Nationwide News Pty Ltd [2017] NSWCA 246. It should be noted in that context that Ms Kostov evidently understood the word “heartfelt” to indicate love or romance whereas the ordinary meaning of that word is “sincere”.

[44]   In any event, I do not think the attribution of emotion or lack of objectivity in a context where Ms Kostov’s then boyfriend was being sentenced to a term of imprisonment, if even defamatory, is sufficiently serious to sustain an action in defamation according to the principle stated in Thornton.

74. There is, accordingly, a res judicata in relation to the claim made in the Second Equity Proceedings.

Costs

75. In circumstances where neither the second Equity proceedings nor the Personal Injury Proceedings should have been brought, and the plaintiff refused to discontinue them when asked more than once by those acting for the first and second defendants, no basis is shown for making other than the ordinary costs order, that in each case the plaintiff should pay the defendant’s costs of the Second Equity Proceedings and the first and second defendant’s costs of the Personal Injury Proceedings.

76. The first and second defendants seek indemnity costs and, in the Personal Injury Proceedings, a gross sum costs order.

77. The first and second defendants submitted that the matters which justified both an indemnity costs order and a gross sum costs order are the following.

78. First, on 31 July 2018 those defendants wrote to the plaintiff offering to settle the costs order made in their favour in the First Equity Proceedings and the Defamation Proceedings for $17,102.39. That offer was open for 14 days. The plaintiff did not respond.

79. On 15 September 2018 the first and second defendants wrote to the plaintiff enclosing draft bills of costs for the First Equity Proceedings and the Defamation Proceedings in total amount of $28,132.80. In the email enclosing the bill of costs, in respect of which the plaintiff was given 21 days to provide any comments opposing the bills in accordance with reg 35 of the Legal Profession Uniform Law Application Regulation 2015 (NSW), the solicitor for those defendants repeated the offer of July 2018 that if the plaintiff agreed to pay $17,102.39 those defendants would regard the matter as settled. That offer was left open until 8 October 2018 after which it was said the bills would be filed for assessment. The plaintiff did not respond to that offer.

80. Secondly, as occurred in the First Equity Proceedings and the Defamation Proceedings, the plaintiff subsequently issued two proceedings in relation to the one claim, being the Second Equity Proceedings and the Personal Injury Proceedings. That caused unnecessary duplication of issues and further legal costs to the first and second defendants.

81. Thirdly, the plaintiff has corresponded directly with employees and officers of the first and second defendants and repeatedly with the Court, all of which involved the incurring of extra costs by the first and second defendants.

82. Fourthly, on six occasions from 6 September 2018 to 26 October 2018 the plaintiff has sought adjournments and/or extensions of time to complete compliance with directions of the Court, which also involved the incurring of extra cost by the first and second defendants.

83. Fifthly, the failure of the plaintiff to respond to the offer of costs in the First Equity Proceedings and the Defamation Proceedings required the preparation of bills of costs for the purpose of assessment. That has involved considerable time and extra cost on behalf of the solicitor for the first and second defendants. The solicitor believes, on the basis of the manner in which the plaintiff has conducted all four proceedings, that the plaintiff will in all likelihood seek a review of any assessed costs.

84. Sixthly, the plaintiff is bankrupt and appears not to own any real property.

85. The solicitor for the first and second defendants has estimated costs and disbursements including counsel’s fees in an amount of $28,376.25. The solicitor for the first and second defendants submitted on the basis of her experience as a practising solicitor for 15 years that if the defendants were awarded costs on an indemnity basis it was likely to receive about 85% to 90% of their costs. On that basis, the defendants submitted that a sum of $24,000 would be the appropriate amount for a gross sum award, assuming indemnity costs were ordered.

Indemnity costs

86. In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Gaudron and Gummow JJ said at [44]:

It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.

87. In Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 the Court of Appeal (Sheller, Ipp and Tobias JJA) said at [8]-[9]:

[8]   ... In summary, although the discretion to award indemnity costs is absolute and unfettered, it must be exercised judicially in the sense that there is some special or unusual feature in the case justifying such an award. Thus, for instance and relevantly, the discretion is enlivened where a party persists in what should have been seen to be a hopeless case.

[9]   Furthermore, the impugned conduct of the party against whom such an award of indemnity costs is sought must be connected with the litigation itself. In particular, it must be related to the way the litigation is conducted. It is thus insufficient that the party against whom the award is sought has engaged in unconscionable conduct or breaches of fiduciary duty in a particularly deplorable way. The latter conduct comprises the subject matter of the litigation rather than a delinquency in its conduct. Thus, as Lindgren J observed in NMFM Property Pty Limited v Citibank Limited (No 11) (2001) 109 FCR 77 at 92,

"In my opinion, there is no counterpart ordinary rule that in the absence of special circumstances indemnity costs will be ordered where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation. … The conduct of the party that is relevant to the issue of indemnity costs is the party's conduct as litigant."

88. In the present case, the plaintiff first commenced two separate proceedings in relation to the same matter. Both of the proceedings were dismissed after it was held that the plaintiff failed on two essential aspects of her claim. She then instituted not one but two further proceedings which relied on the same publications, and claimed the same or very similar relief as had been claimed in the two earlier proceedings that had been dismissed.

89. The plaintiff, it is to be remembered, has a law degree and appears to practise in some legal role in the firm where she is currently employed. It might reasonably be expected even of a non-legally trained litigant that, where that person’s proceedings had been dismissed because their case, in general terms, lacked substance for the claim they brought, such a person would know that it was inappropriate to commence fresh proceedings claiming the same relief on the same basis. There can be no doubt that someone with a law degree knows or is deemed to know that the dismissal of the first proceedings brings about a res judicata or an issue estoppel, and at the very least the institution of a subsequent proceeding is likely to be an abuse of process.

90. In my opinion the plaintiff has engaged in the relevant sort of delinquency referred to in Oshlack and Mead v Watson. Her failure to respond in any way to the costs offer and subsequently the bill of costs served in relation to the first two proceedings and thereafter commencing the second set of proceedings, only highlights that delinquency.

91. I consider that the plaintiff should pay the first and second defendants’ costs of the Second Equity Proceedings and the Personal Injury Proceedings on an indemnity basis.

Gross sum costs order

92. In Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Einstein J set out the principles which inform the exercise of the discretion to award a gross sum costs order at [9]:

i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation ” (All ER page 265)];

ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];

iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199];

iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22];

v. the gross sum "can only be fixed broadly having regard to the information before the Court": Beach Petroleum at 124;

[In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates".]

vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120”;

vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]:

"On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265. …"

93. In Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Giles JA said of the earlier equivalent provision to s 98(4) of the Civil Procedure Act 2005 (NSW) (Supreme Court Rules 1970 (NSW) pt 52A r 6(2)):

[21] The power conferred by r 6(2) is not confined, and may be exercised whenever the circumstances warrant its exercise. It may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment (Leary v Leary (1987) 1 WLR 72; Sparnon v Apand Pty Ltd (von Doussa J, 4 March 1998, unreported); Beach Petroleum NL v Johnson (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628).

[22] Of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs. As was said in Beach Petroleum NL v Johnson at 124, the gross sum "can only be fixed broadly having regard to the information before the Court"; in Hadid v Lenfest Communications Inc at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates". The approach taken to estimate costs must be logical, fair and reasonable (Beach Petroleum NL v Johnson at 123; Hadid v Lenfest Communications Inc at [27]). The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA).

94. In Hamod v State of New South Wales and Anor [2011] NSWCA 375 Beazley JA (with whom Giles and Whealy JJA agreed) said:

[813] I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

"The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available."

[814] See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 to date, "Civil Procedure Act", at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd [[2007] NSWSC 23]; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J.

…

[820] The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2); Leary v Leary; Harrison v Schipp at 743; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd [[1999] FCA 673; (1999) 93 FCR 1 at [15]] (emphasis added)

95. Although some of the authorities including Hamod and Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 have noted that the gross sum costs procedure was particularly useful in complex cases, other authorities have made it clear that the old Rule (now s 98(4)(c)) is expressed in general terms and is not limited to cases of that type: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811 at [8] and Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 at [6].

96. In addition to the matters put forward by the first and second defendants to justify such an order, there is one further matter that should also be considered. Since the affidavit of the first and second defendants’ solicitor was sworn and since I heard the first and second defendants’ motions on 30 October 2018, the plaintiff filed a notice of motion, seeking that she be permitted to provide evidence and submissions prior to my judgment being delivered on those notices of motion, and seeking a stay of my judgment until the plaintiff had been given that opportunity. The application was not made to me but came before Walton J on 6 November 2018. In the meantime, the plaintiff filed an amended notice of motion seeking identical relief. The only difference between the original notice of motion and the amended notice of motion was that it added the file number of the Second Equity Proceedings to the notice of motion which had been filed in the Personal Injury Proceedings.

97. Justice Walton dismissed the amended notice of motion holding that, if any relief was available to the plaintiff, it was by way of an appeal from my decision to refuse the adjournment. His Honour ordered that the plaintiff pay the first defendant’s costs of the amended notice of motion.

98. That application made by the plaintiff was a hopeless application doomed to fail. It perpetuated a course of conduct adopted by the plaintiff and noted by Fagan J in the proceedings where he declared the plaintiff was a vexatious litigant: Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794, and more recently in Kostov v Amelie Housing [2018] NSWSC 1800 at [5], where the plaintiff, when dissatisfied with a decision of a court, habitually applies to another judicial officer of the same level to reverse it or amend it. Such a process incurs unnecessary costs for the party to the litigation, and that problem is exacerbated now that the plaintiff’s estate has been sequestrated.

99. In accordance with the principles associated with gross sum costs orders, I consider that the manner in which the plaintiff has instituted the four sets of proceedings and conducted them demonstrates a high likelihood that she will use the costs assessment process to cause the first and second defendants to incur considerable costs before that assessment process comes to an end. In circumstances where the plaintiff has limited resources to pay any costs order by reason of her bankruptcy and her not owning any real property, I consider that a gross sum costs order should be made in favour of the first and second defendants.

100. The further issue to be determined is the precise sum that the Plaintiff should pay. When assessing the costs for the purpose of making a gross sum order a broad brush approach may be taken: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [31] and [38]; Hamod v State of New South Wales (No 13) [2009] NSWSC 756 at [31]; see also Hamod (Court of Appeal) at [819]-[820] and Young v Hones (No 3) [2014] NSWSC 499 at [28]-[30].

101. It is ordinarily accepted that a discount should be provided on the costs figure which has been established. That discount is concerned not only with the relationship between solicitor/client costs and party/party costs but also with contingencies relevant to a costs assessment process: Hamod (Court of Appeal) at [814] and [820].

102. In Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 1307 Schmidt J appears to have reduced the costs by 10% (at [16]). The Court of Appeal in Harrison v Schipp took a similar approach at [51]. In Simone Starr-Diamond Slattery J at [22] allowed 80%, and in Coshott v Parker (No 3) [2015] NSWSC 1195 Hall J at [78] allowed 70%. In Stankovic v State of NSW (No. 2) [2016] NSWSC 335, I allowed 80% at [17].

103. Bearing in mind those authorities, I consider that an appropriate figure is 80% of what would be likely to be assessed by a costs assessor. That assessment is likely to amount to $25,000 bearing in mind the evidence from the first and second defendants’ solicitor. Accordingly, I assess the gross sum costs order in respect of the Personal Injury Proceedings at $20,000.

Stay of further proceedings

104. The notice of motion filed in the Personal Injury Proceedings refers to s 51 of the Civil Procedure Act 2005 (NSW). That is clearly an error, and I have assumed the reference should be to s 67. The reference to UCPR r 12.4 seems inappropriate. None of the proceedings has been discontinued to bring the rule into operation. The relevant rule would appear to be r 12.10.

105. Rule 12:10 of the UCPR provides:

12.10 Stay of further proceedings to secure costs of proceedings dismissed

(cf SCR Part 40, rule 8 (2); DCR Part 18, rule 8; LCR Part 17, rule 9)

If:

(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and

(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.

Note.

See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.20 as to costs payable in relation to proceedings that are dismissed.

106. As noted above at [7], McCallum J ordered on 20 July 2018 that the plaintiff was to pay the defendant’s costs of the First Equity Proceedings. Although the judgment/order issued 3 August 2018 in respect of orders made on 20 July 2018 concern both the First Equity Proceedings and the Defamation Proceedings, no costs order appears in relation to the Defamation Proceedings.

107. However, r 42.20 of the UCPR provides:

42.20 Dismissal of proceedings etc (cf SCR Part 40, rule 8)

(1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.

(2) If the court makes an order striking out a defence, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the defendant must pay the plaintiff’s costs of the proceedings in relation to those matters in respect of which the defence has been struck out.

108. It is clear from McCallum J’s judgment of 8 June 2018 that her Honour dismissed the Defamation Proceedings. In those circumstances, and in the absence of any other order, r 42.20 applies with the result that the plaintiff must pay the defendant’s costs of those proceedings.

109. Neither the costs of the Defamation Proceedings nor the costs of the First Equity Proceedings have been paid. In the face of the dismissal of both those proceedings, the plaintiff commenced the Second Equity Proceedings and the Personal Injury Proceedings which, I have determined, had as their basis, the publication of the article concerned. Those latter two proceedings relied on the same or substantially the same cause of action and claimed the same or substantially the same relief as the former two proceedings.

110. Since, in this judgment, I have dismissed the Second Equity Proceedings and the Personal Injury Proceedings, there are no further proceedings on foot to be stayed pursuant to r 12.10. However, the Court is given the power to make consequential orders as it thinks fit.

111. In Webster v Super Smart Strategies Pty Ltd; Courtney v Super Smart Strategies Pty Ltd [2017] NSWSC 531 a cross-claim had been dismissed with costs by reason of the cross-claimants’ persistent defaults in compliance with court directions and a failure to prosecute the cross-claim. The cross-defendants sought an order that no originating process to commence proceedings based on the same or similar allegations as those made in the cross-claim be permitted to be filed unless its costs in the dismissed proceedings were paid.

112. Justice Adamson held at [61] that it was appropriate to make such an order not only to protect the cross-defendants but to protect the Court’s processes. Her Honour there said:

The order must, accordingly, be proportional and be directed to the prejudice which would be occasioned if the restriction were not included. In my view, it is appropriate to order that the defendants not be permitted to file proceedings in this Court, without leave, which are based on the same or similar facts as the first cross-claim, unless the costs of the cross-defendants have been paid. …

113. In circumstances where the plaintiff commenced four sets of proceedings arising out of the same publications and seeking the same relief in two proceedings (both Equity Proceedings) and the same relief in two other proceedings (the Defamation Proceedings and the Personal Injury Proceedings) I consider that an order should be made under r 12.10 to prevent any further proceedings being commenced against the first and second defendants on the same or substantially the same cause of action.

114. In one sense, such an order is no longer necessary because on 19 November 2018 Fagan J made orders pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) prohibiting the plaintiff from instituting proceedings in New South Wales: Kostov v State of New South Wales (Vexatious Proceedings). Against the possibility that orders made by Fagan J are set aside in any appeal from that judgment, I consider that there is merit in making the order under r 12.10 that I have indicated.

Conclusion

115. I make the following orders:

1. In proceedings 2018/248745:

1. I dismiss the proceedings pursuant to UCPR r 13.4 although reserving the defendant’s rights to pursue the contempt charge referred to in prayers 4 and 5 of the defendant’s amended notice of motion filed 19 October 2018.

2. The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.

3. The remaining aspect of the proceedings (prayers 4 and 5 in the amended notice of motion filed 19 October 2018) is adjourned for mention and directions to 13 December 2018 at 9.30am.

2. In proceedings 2018/258386:

(a) I dismiss the proceedings pursuant to UCPR r 13.4 against the first and second defendants.

(b)   The plaintiff is to pay the first and second defendants costs on an indemnity and gross sum basis assessed in the sum of $20,000.

3. The plaintiff is restrained from commencing any further proceedings arising out of the publication of the article referred to in paragraph [1] of this judgment unless and until:

(a)   The costs ordered to be paid by McCallum J on 20 July 2018 in respect of proceedings 2018/83736 are paid;

(b) The costs payable pursuant to UCPR r 42.20 payable as a result of the judgment of McCallum J on 8 July 2018 in respect of proceedings 2018/87917 are paid;

(c)   The costs ordered by this judgment to be paid in proceedings 2018/248745 are paid; and

(d)   The costs ordered by the judgment to be paid in proceedings 2018/258386 are paid.

**********

Amendments

29 January 2019 - Typographical error on cover page and para [115].