Mallegowda v Sood (No. 7)

[2019] NSWDC 252

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mallegowda v Sood (No. 7) [2019] NSWDC 252
Hearing dates:	Written submissions, 11 April to 9 May 2019
Date of orders:	12 June 2019
Decision date:	12 June 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The second defendant’s application for damages is refused. (2) The application by the defendants/cross-claimant for indemnity costs for the whole of the proceedings is refused. (3) By way of variation of order 3 of the orders of 29 June 2018, the plaintiff is to pay the costs charged by all the expert witnesses, including their report fees, witness expenses and any other incidental fees which are to be paid in full for all such work carried out after 12 July 2013. (4) By way of variation of order 3 of the orders of 29 June 2018, the plaintiff is to pay the defendants’/cross-claimant’s reasonable disbursements as litigants in person, on the ordinary basis, for the conduct of the trial (including reasonable preparation costs) on the following trial dates: 2, 3, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24 and 25 May 2016; 24 August 2016; 1 June 2017; 9, 10 and 11 August 2017; 26 October 2017; 1 December 2017; 9 February and 29 June 2018 and their reasonable disbursements in the making of this application for costs. (5) By way of variation of order 3 of the orders of 29 June 2018, all costs orders in these proceedings in favour of the plaintiff/cross-defendant are vacated. (6) Order 5 of the orders of 29 June 2018 for the plaintiff to pay the cross-claimant’s costs of the cross-claim on the ordinary basis as well as the cross-claimant’s reasonable disbursements in relation to the cross-claim is confirmed, but with the restriction that these costs run from 12 July 2013 and are restricted to the costs of retaining the experts and identifying the publication issues set out in the cross-claim for the trial. (7) Pursuant to UCPR r 20.14, I refer the determination of these reasonable disbursements and legal costs (and disbursements) to a costs assessor agreed upon by the parties (or, in default of agreement, by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW) for inquiry and report by the costs assessor on the costs questions arising from these proceedings, including but not limited to: (a) An assessment, on the ordinary basis, of the defendants’ reasonable disbursements for the trial on the dates above (including reasonable disbursements in relation to preparation of the trial); (b) An assessment of the disbursements and entitlements of the expert witnesses as well as of the defendants as for the retaining and briefing of these experts both by the litigants in person and of their solicitors for the period from the filing of the defence on 12 July 2013; (c) Any other issue germane to the assessment of these costs, such as the costs payable by the parties for the assessment. (8) Mr Bellach is to advise the court as well as the parties of any issues in relation to the costs of the referral, including but not limited to the payment of referral fees in advance. (9) Liberty to apply in relation to the implementation of the orders set out above.
Catchwords:	COSTS – application for indemnity costs by defendants and cross-claimant – whether offers of compromise and Calderbank offers bettered – whether plaintiff’s denial of publication and conduct of the trial warranted special costs orders – application for plaintiff for orders that each party pay his own costs by reason of the conduct of the trial by the defendants and cross-claimant – application for indemnity costs refused – orders for the plaintiff to pay certain of the costs and disbursements on an issue by issue basis - method for assessment of costs where parties all litigants in person – referral pursuant to UCPR r 20.14 I to a costs assessor agreed upon by the parties (or, in default of agreement, by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW) for assessment of costs and disbursements in accordance with the orders made in these proceedings
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), s 139K Civil Procedure Act 2005 (NSW), ss 56 – 62 Defamation Act 1974 (NSW), ss 7A and 48A Defamation Act 2005 (NSW), s 40 Defamation Act 2006 (NT), s 37 Defamation Act 2005 (Qld), s 40 Defamation Act 2005 (SA), s 38 Defamation Act 2005 (Tas), s 40 Defamation Act 2005 (Vic), s 40 Defamation Act 2005 (WA), s 40 Uniform Civil Procedure Rules 2005 (NSW), rr 7.3, 20.14, 20.26, 20.27, 42.1 and 42.13A
Cases Cited:	Attard v James Legal Pty Ltd [2010] NSWCA 311 Barnes v Forty Two International Pty Limited (No 2) [2015] FCAFC 19 Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 Cachia v Haines (1994) 179 CLR 403 CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112 David Syme & Co v Hore-Lacy [2000] VSCA 24 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 Johnston v Nationwide News Pty Ltd [2005] NSWCA 17 Jones v Sutton (No 2) [2005] NSWCA 203 Ludwig v The Public Trustee [2008] NSWCA 115 Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd [1994] FCA 302 Mallegowda v Sood [2013] NSWDC 97 Mallegowda v Sood (No 2) [2014] NSWDC 216 Mallegowda v Sood (No. 3) [2015] NSWDC 14 Mallegowda v Sood (No 4) [2016] NSWDC 88 Mallegowda v Sood (No 5) [2017] NSWDC 470 Mallegowda v Sood (No. 6) [2018] NSWDC 281 Mallegowda v Sood [2019] NSWCA 37 Newell; Muriniti v De Costi [2018] NSWCA 49 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 Prothonotary of Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 Rush v Nationwide News Pty Ltd [2018] FCA 357 Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd [2004] NSWSC 333 Stokes v Ragless [2019] SASCFC 31 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Tilden v Gregg [2015] NSWCA 164 von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172 Webb v Bloch (1928) 41 CLR 331 Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Yu v Cao (2016) 91 NSWLR 190
Texts Cited:	P. Taylor SC, Justice G. Bellew, M. Meek SC, Dr E. Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis, Australia)
Category:	Costs
Parties:	Plaintiff/Cross-Defendant: Shashikanth Mallegowda First Defendant/Cross-Claimant: Amit Sood Second Defendant: Naveen Lingaiah
Representation:	Plaintiff/Cross-Defendant: In person First Defendant/Cross-Claimant: In person Second Defendant: In person
File Number(s):	2012/352080
Publication restriction:	None

Judgment

The applications before the court

1. These are proceedings for defamation in which the defendants were successful in relation to the plaintiff’s claim, and in which the first defendant’s cross-claim against the plaintiff (also for defamation) resulted in an award of $5,000 (Mallegowda v Sood (No. 6) [2018] NSWDC 281). In a judgment handed down on 29 June, 2018, I made orders as follows:

1. Judgment for the defendants on the plaintiff’s claim.

2. In relation to the Cross-Claim, judgment for the cross-claimant against the cross-defendant in the sum of $5,000.

3. The plaintiff pay the defendants’ reasonable disbursements of the trial commencing on 2 February 2016 before Gibson DCJ, including reasonable disbursements relating to the preparation of the hearing and at all times when they have been self-represented, such disbursements to be agreed or assessed.

4. Subject to existing costs orders to the contrary, the parties pay their own costs of all vacated hearings prior to the trial of these proceedings and in relation to the referral to the Supreme Court.

5. In relation to the Cross-Claim, cross-defendant to pay cross-claimant’s legal costs and, where the cross-claimant has represented himself, the cross-claimant’s reasonable disbursements.

6. Liberty to apply in relation to costs and in relation to interest (in relation to the cross-claim), such liberty to be a self-executing order, to be exercised within 28 days.

7. The plaintiff’s applications under s 203 District Court Act 1973 (NSW) and ss 327 and/or s 338(c) Crimes Act 1900 (NSW) are refused.

8. The defendants’ applications for leave to reopen are refused.

9. Exhibits retained for 28 days.

2. The plaintiff’s application for leave to appeal was dismissed: Mallegowda v Sood [2019] NSWCA 37. Although not referred to in the appellate judgment, any application for leave to appeal from the cross-claim by the cross-defendant (the plaintiff in the main decision) would have been dismissed as well. There was no application by the first defendant/cross-claimant for leave to appeal from the cross-claim’s quantum, although the second defendant, as part of this application, now seeks an award of damages for himself as well, on the basis of emotional distress caused by these proceedings rather than a claim in defamation.

3. In addition to the second defendant’s claim for damages, this is an application by the defendants/cross-claimant (hereafter referred to as “the defendants” or identified as “the first defendant” or “the second defendant”, unless the first defendant is referred to in his role as cross-claimant) for costs of the proceedings on an indemnity basis. This application is brought on two bases:

1. The plaintiff failed to accept either of the two Offers of Compromise (which were alternatively framed as Calderbank offers); and

2. The plaintiff’s conduct of the trial, in which he told lies from beginning to end, warranted an order for indemnity costs.

4. As to the first ground, there are significant problems with the content of the Offers of Compromise, which are set out in more detail below. As to the second ground, adverse credit findings were made by me about all of the parties in these proceedings.

5. The plaintiff/cross-defendant also brings a costs application, namely for each party to pay his own costs.

The costs the subject of these applications

6. The following general features of the costs orders made at trial should be noted:

1. Costs of the trial of the plaintiff’s claim: In the judgment orders set out above, I have already made an order for the costs of the trial, limited to the entitlement of the defendants as litigants in person to claim for disbursements, as opposed to legal costs. The defendants now seek not only indemnity costs but also “reasonable costs” of the proceedings, from which I infer they are seeking payment of sums greater than the disbursements normally permitted to litigants in person. The written submissions do not clarify whether they are seeking the “reasonable costs” while they have been self-represented solely for themselves or on behalf of some undisclosed legal adviser. However, claims for pre-trial legal costs clearly relate to the costs of their former legal representatives.

2. Costs of the cross-claim: I made an order for costs on the ordinary basis, including legal costs, in favour of the cross-claimant for the whole of the cross-claim proceedings. This would include such disbursements as the cross-claimant is entitled to as a litigant in person at the trial. The cross-claimant now seeks orders for these costs to include “reasonable costs” (as opposed to disbursements) of the trial, as well as an order that all these costs (his own and those of his former legal representatives) be payable on an indemnity basis.

3. Costs of bringing the contempt application: The defendants appear to acknowledge that they are not entitled to these costs in their first set of submissions (paragraph 2) although this is in conflict with their submissions in reply. They are not entitled to such costs: Johnston v Nationwide News Pty Ltd [2005] NSWCA 17.

4. Damages: As noted above, the second defendant brings an application for damages for “emotional trauma suffered by the second defendant” following the “reinforced position” due to the orders made by the Court of Appeal in Mallegowda v Sood. This appears to relate in part to the Court’s findings concerning the issuing of subpoenae in the Newcastle registry of the District Court after the proceedings were transferred to the Defamation List in the Sydney registry. Costs applications made by litigants in person cannot include claims of this nature: Cachia v Haines (1994) 179 CLR 403; see the discussion of the limitations on claims by litigants in person set out in von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172 at [8]-[14].

Problems in the determination of these issues

7. Three preliminary issues need to be noted as the submissions of the parties do not reflect their actual entitlement to costs.

8. First, the defendants go beyond the reference to “disbursements” in my judgment orders and now seek “all reasonable costs” of self-representation, which presumably are not merely disbursements of the limited kind for litigants in person which I have already ordered. If the defendants are bringing applications for their lost time, or some other interpretation of “reasonable costs” of representation, that is not permitted: see Cachia v Haines at 408, 409 and 417. This excludes compensation for time spent by a litigant who is not a lawyer in preparing and conducting his case: von Reisner v Commonwealth of Australia (No 2) at [13]. I note in particular the second defendant’s claim for damages, which also appears to have been made as some form of costs claim.

9. No information about these “reasonable costs” is provided. It is not uncommon for a list to be given to the court (see for example Ludwig v The Public Trustee [2008] NSWCA 115 at [42]); this is not a pre-requisite, but the failure to give any specificity is one of the reasons for my making an order for the appointment of a referee, as is set out below. All I know is that the defendants incurred legal costs before trial of a very high nature: Mallegowda v Sood (No. 3) [2015] NSWDC 14 at [8]. If those are the “reasonable costs”, then these must be differentiated from the disbursements claimed by the defendants. For example, a litigant in person may be able to claim “expenses” (Tilden v Gregg [2015] NSWCA 164, order 2) of the kind sought by Mr Ludwig in Ludwig v The Public Trustee, which may not strictly be able to be claimed by a legal practitioner.

10. Second, the plaintiff asks for an order for each party to pay his own costs of the litigation. His submissions on this application include additional information that his former solicitors obtained judgment for unpaid legal fees of $355,834.96 and that the costs payable for the contempt proceedings taken against him remain unpaid. He appears to be saying there is not much left. However, inability to pay is not a reason for refusing to make costs orders, so the sole grounds upon which I have considered the plaintiff’s application relate to the offers of compromise/Calderbank offers and the arguments both sides put before me as to the conduct of these proceedings.

11. Third, although it is clear from the content of all parties’ submissions that they have received legal assistance in drafting their submissions, the defendants have not addressed the provisions of ss 56 – 62 Civil Procedure Act 2005 (NSW) or s 40 Defamation Act 2005 (NSW), even in reply, despite this being pointed out by the plaintiff in his written submissions. However, as these provisions are addressed in the course of the offers exchanged, I am able to deal with this issue.

12. In approaching the costs issues, I have been careful to afford the parties procedural fairness and to note the additional obligations of the court where litigants in person are before the court: Stokes v Ragless [2019] SASCFC 31 at [15] – [31]. However, in the present case, I am satisfied that all the fact-based problematic issues in that case have not occurred here. In particular, all parties were legally represented at the time offers were made (the defendants were in fact represented up until a month before the trial: T 655) so the concerns addressed by the Court in Stokes v Ragless at [32]-[41] need not be addressed.

13. The issues raised by the parties in their submissions mean that the way in which these proceedings have been conducted by the parties is of particular relevance in terms of the manner and extent to which costs have been incurred and it is necessary to set out some parts of this history in detail.

An overview of the written submissions

14. The defendants set out their request for indemnity costs for the whole of the proceedings on the following bases:

1. The defendants (and, as to the second offer, the first defendant in his capacity as cross-claimant) made offers of compromise and Calderbank offers on 30 November 2012 and 30 August 2013.

2. The plaintiff’s action was “from beginning to end based upon a lie” (paragraph 6 of the written submissions), namely that he did not set up the email accounts used in relation to the publication of the matter complained of.

3. The defendants had been “entirely vindicated” (paragraph 11) and the adverse findings made against them in the judgment were either wrong or should be disregarded.

15. The plaintiff opposes the application and asks the court to order each party pay his own costs. He submits:

1. The plaintiff was driven to these proceedings after the defendants disseminated confidential information about his bipolar condition in the Indian community after his medical file was accessed by a doctor working in the same ward as the first defendant’s wife (written submissions, paragraph 1). I note the Police and Privacy Commission inquiry findings, set out at [118] – [128] in my judgment concerning the events which followed. How this provoked the defamation proceedings is unexplained.

2. The plaintiff complains that “it is very unclear in their submission [sic] about what costs they are seeking” (paragraph 18). In addition, they were not legally represented at the trial and should not be entitled to legal costs for themselves.

3. The plaintiff claims there are conflicting statements as to whether the defendants are seeking indemnity or ordinary costs (written submissions, paragraph 21) but submits that the conduct of the hearing warrant an order for each party to pay his own costs.

4. The plaintiff also points out that the defendants have failed to address costs law issues arising from ss 56 – 62 Civil Procedure Act 2005 (NSW) and s 40 Defamation Act 2005 (NSW) (written submissions, paragraph 22). The defendants have not answered this objection in their submissions in reply.

16. The defendants in reply state:

1. The plaintiff was similarly guilty of delay in the proceedings (paragraph 2)

2. The defendants challenge the basis upon which the plaintiff complains about the issue of subpoenae in the Newcastle registry of the District Court after the proceedings were transferred to the Defamation List in Sydney. The defendants now “seek damages for emotional trauma suffered by the second defendant on account of this malicious and unfair claim” (written submissions, paragraph 6).

3. The defendants clarify that they are seeking not only costs of being represented but also “reasonable costs of defending while being self-represented”.

4. The defendants challenge findings of fact in the first instance judgment including the finding that the defendants authorised the sending of an anonymous email in 2011 in which they were listed as candidates to take over the Indian Association of Newcastle, on the basis that expert evidence should have been required to make this finding.

5. The orders sought are for costs on an indemnity basis while being represented, “all reasonable costs” while being self-represented and damages to the second defendant, apparently in part due to observations made in the Court of Appeal.

The manner in which this application has been heard

17. This application has proceeded by way of written submissions only. That is not uncommon in costs applications following a trial, but there were particular reasons for doing so in these proceedings.

17. I set out in Mallegowda v Sood (No 6) at [19]-[47] some of the difficulties of conducting this trial. In Mallegowda v Sood [2019] NSWCA 37, McCallum JA described these difficulties as follows:

“[4] The hearing of the claim presented a difficult task for the primary judge (Gibson DCJ). Mr Mallegowda was the plaintiff. There were two defendants, Mr Amit Sood and Mr Naveen Lingaiah. All three parties were unrepresented. There was extreme hostility between the plaintiff on the one hand and the two defendants on the other. The parties’ lack of legal training combined with their determination to pursue every point meant they not only gave no assistance to the primary judge but made her task more difficult in many respects.”

19. Another problem was that the conduct of the plaintiff towards one of the witnesses led to his being charged with, and convicted of, contempt of court during the hearing: Prothonotary ofSupreme Court of New South Wales v Mallegowda [2016] NSWSC 1087. In the course of sentencing, Adams J noted (at [21]-[23]) that the plaintiff suffers from a severe form of bipolar disorder. The plaintiff cites as one of the triggers for commencement of these proceedings the circumstances in which confidential medical information was obtained by the defendants; the plaintiff has always claimed that this was obtained from the health records security breach referred to at [118] – 128] in my judgment. Whether or not that is the case, the defendants’ persistent attempts to use trial processes ranging from subpoenae to applications for the plaintiff to be examined by a psychiatrist to obtain information about the plaintiff’s bipolar condition has been a significant contributor to the tensions of the trial.

20. By reason of the level of hostility between the parties (which includes requests for their respective addresses to be kept confidential as well as angry exchanges which led me to adjourn the court more than once), I invited the parties to provide full submissions in writing, this having been the method used for final submissions on liability and quantum for the claim and cross-claim.

21. I am satisfied from perusal of these submissions that, while there are issues upon which the parties could have provided more information, this is the most information I am likely to receive from the parties on the issue of costs, and that an oral hearing where I seek further information would be unnecessary. I do so for four reasons:

1. This is how the submissions stage of these proceedings were conducted and, as the plaintiff’s appeal was dismissed, it is clear that this procedure was not disadvantageous to the parties.

2. It is clear from the parties’ written submissions that they have received some assistance of a legal nature, in that they refer to certain principles concerning offers of compromise and Calderbank offers and, in the case of the plaintiff, some statutory provisions relevant to the making of costs orders in defamation proceedings.

3. The parties were asked to prepare full written submissions on this basis, and they have done so. The defendants were given an opportunity to reply to the plaintiff’s submissions.

4. Given the history of the proceedings and the bitterness between the parties, it is a disproportionate use of court resources for the issue of indemnity and reserved costs to require an oral hearing as well.

22. The second defendant’s claim for damages appears to be at least in part because of their “reinforced position” (paragraph 6) in the Court of Appeal judgment concerning the early issuing of subpoenae in the Newcastle registry both before and after the proceedings were transferred to the Sydney registry, so I will first set out the chronology of the proceedings, as this is of relevance in relation to the parties’ competing “moral turpitude” claims.

An overview of these proceedings

23. The plaintiff, representing himself, commenced his claim for defamation in the Newcastle registry of the District Court of New South Wales on 12 November 2012. Roberts Legal filed a Notice of Appearance for the defendants on 26 November 2012, and the defendants were legally advised in relation to the steps they took thereafter.

24. By reason of the imminent long vacation and the transfer of the proceedings to the Defamation List in the Sydney registry on 20 February 2013, very little case management or activity occurred in the Newcastle registry, with one notable exception. What makes the history of these proceedings very different from other defamation actions is that the defendants made applications to the Newcastle registry to issue subpoenae on 17 December 2012, 8 and 16 January 2013, and 5 and 11 February 2013.

25. The plaintiff (still acting for himself) then formally sought leave to issue subpoenae on 25 and 30 January and 18 February 2013, as is required for all litigants in person (r 7.3 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”)), although it does not appear that any were actually issued. He did, however, object to the subpoena of hospital and medical records concerning his bipolar condition. I should add that the plaintiff’s bipolar condition was a subject to which the defendants devoted much energy throughout the whole of the proceedings (other attempts included notices of motion, notices to produce, oral applications and cross-examination, as may be seen in the first five judgments I have handed down as well as in the judgment on liability and quantum: Mallegowda v Sood (No 6) at [20], [32] – [33] and [51]).

26. The plaintiff filed an amended statement of claim on 12 December (and apparently again on 19 December) and both parties filed notices of motion (on 24 December 2012, 23 January and 19 February 2013). The filing of these motions, which had to come before the circuit judge, resulted in the transfer of the proceedings to the Defamation List in the Sydney registry on 20 February 2013, with a return date of 22 March 2013.

27. By this stage, the defendants’ subpoenae had resulted in the production of 8 packets of documents, which are noted by JusticeLink on 26 February 2013 as having been transferred to the Sydney registry along with the file.

28. However, the defendants’ subpoena activities in the Newcastle registry did not stop there. According to JusticeLink, they brought 4 further applications for production under subpoena in the Newcastle registry between 27 February and 18 March 2013, all of which postdate the transferring of these proceedings to the Sydney registry.

29. The Defamation List Judge’s orders on 22 March 2013 merely stood the proceedings over to 12 April 2013 (a date later changed to 3 May 2013), but the defendants’ subpoena applications continued apace, with general access being granted to a further 11 packets on 25 March, another on 26 March, yet another on 2 April and two on 4 April 2013. By this stage there were 19 subpoena packets in the registry, according to the subpoena numbering system.

30. The plaintiff’s notice of motion filed on 18 March 2013 sought to set aside these subpoenae, particularly those which sought information about his hospitalisation and treatment for his bipolar disorder (Mallegowda v Sood [2013] NSWDC 97 at [38]). On 3 May 2013 the parties’ competing applications came before the Defamation List Judge, Bozic SC DCJ, for argument. Bozic SC DCJ struck out the statement of claim with leave to replead but did not deal with the plaintiff’s complaints about subpoenae, noting in his orders that “the outstanding issues” of production of documents would be stood over until after the close of pleadings.

31. The plaintiff’s new solicitors filed a Notice of Appointment of Solicitor on 14 May 2013, the same day as an application by the plaintiff for leave to issue subpoenae for production (a second application was made the following day). As is noted in my judgment in Mallegowda v Sood at [40], the documents the plaintiff sought leave to obtain included information about what subpoenae had been issued to third parties, as he had not been notified about at least some of these subpoenae being issued..

32. This was the state of the proceedings when the defendants’ challenges to imputations and the plaintiff’s complaints about the early issuing of subpoenae came before me on 12 June 2013. Counsel for the defendants told the court that the defendants had issued 18 subpoenae in the Newcastle registry, including subpoenae issued and/or returnable in Newcastle despite the file being transferred to Sydney. Concessions were made concerning the inappropriateness of subpoenae for the plaintiff’s mental health. As to the balance, the defendants were invited to, but did not, bring any challenge to the proposed order that these subpoenae be set aside, and I accordingly set them aside. It was acknowledged that the content of all of them (except those directed to the plaintiff’s medical history) went to a proposed justification plea and that no defence had ever been filed.

33. A defence which included a cross-claim by the first defendant was filed on 12 July 2013. (The plaintiff/cross-defendant filed a defence denying publication on 19 August 2013.) In their defence, the defendants used information that had been obtained under subpoenae, which had also been provided to the defendants’ expert, Dr Watt, whose report on this issue is referred to in the second offer of compromise from the solicitors for the defendants dated 30 August 2013.

34. It is trite law that a defendant in defamation proceedings cannot issue subpoenae as a fishing expedition in the hope of finding something in support of the plea of justification or its particulars. In Rush v Nationwide News Pty Ltd [2018] FCA 357, where subpoenae in support of a pleaded defence of justification were set aside, Wigney J stated (at [172]).

“A defendant who pleads justification must do so on the basis of the information which it has in its possession when the defence is delivered and is not permitted to undertake a fishing expedition in the hope of finding something in support of its plea: TCN Channel Nine Pty Ltd v Berrigan (1996) Aust Torts Reports 81-404; (unreported, Supreme Court of Western Australia Full Court, Kennedy, Rowland and Franklyn JJ, 17 June 1996) at p. 12; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254; Sunday Times Newspaper Co Ltd v Sun Newspaper Co Ltd (1919) 36 WN (NSW) 72 at 73. In Zierenberg, Kay LJ said (at 188-189):

If the defendant says that he is unable to state any such facts without discovery, the answer is simple and conclusive – he ought not to have published the libel, and cannot plead any justification for having done so.”.

35. At least a defence had been filed in Rush v Nationwide News Pty Ltd, the opposing party had been notified of all the relevant subpoenae, and the issue dealt with before the action proceeded further, unlike the present case, where it took until June 2013 for the subpoena argument to be heard, in circumstances where the defendants issued one subpoena after another in another registry of the court (although some may have been issued in the Sydney registry) for a period of over six months.

36. In addition, the issue of subpoenae for confidential treatment of the plaintiff for mental health issues would have had no relevance to any part of the justification defence. If subpoenae had been issued to Mr Rush’s medical practitioners seeking such information, I imagine that these would have been set aside.

37. Even more compelling than these two other factors is the sheer scale of the documents sought. This was a blanket request for production of a vast range of records, including the plaintiff’s telephone records, as well as subpoenae to a series of data holders. If a similar number of subpoenae had been issued for Mr Rush’s telephone, employer and/or data provider records, these might similarly have been regarded as fishing subpoenae.

38. One of the plaintiff’s grounds of appeal was that the material produced in response to these subpoenae (at least some of which he was unaware until Mr Connell advised the court of their existence in June 2013, in response to the plaintiff’s notice of motion to set them aside) had been tampered with. The defendants submit that the Court of Appeal’s rejection of this argument, in part because the Court of Appeal considered I was wrong to have set the subpoenae aside, “reinforced” the correctness of the defendants’ conduct and that my credit findings concerning the defendants should be acknowledged by me to be wrong.

39. Ultimately, however, whether the Court of Appeal (which did not have this chronology before it) was correct in saying that the subpoenae should not have been set aside, this was not a finding relevant to the defendants’ credit, as their subpoenae were issued by their legal practitioners, because litigants in person need leave to issue subpoenae (UCPR r 7.3). The Court of Appeal did not hear argument about, or set aside my judgment, but made observations about the correctness of the authority I cited. McCallum J’s remarks were confined to the issues on appeal.

40. Whatever the merits of the judgment I handed down, the conduct of the parties from the commencement of this litigation, including (relevantly for this application) at times when the parties were represented, has been one of general disregard for the principles set out in ss 56 – 62 Civil Procedure Act 2005 (NSW). The most egregious of these failures has been the constant delays and applications for adjournment which prevented the trial from proceeding and, when it was adjourned, from continuing to its conclusion.

41. These delays can all be laid at the feet of the defendants. The first hearing date (18 August 2014) had to be vacated because of late service of an expert report by the defendants: Mallegowda v Sood (No 2) [2014] NSWDC 216. There were also case management delays, including amendments to the defence to plead contextual justification and Hore-Lacy imputations (David Syme & Co v Hore-Lacy [2000] VSCA 24). A hearing in Newcastle District Court did not proceed because three days were spent on interlocutory argument, largely generated by the defendants.

42. The defendants’ solicitors continued to act up until April 2016, when the defendants unsuccessfully sought an adjournment of the trial which commenced on 2 May 2016; a fuller history of these delays is set out in Mallegowda v Sood (No 4) [2016] NSWDC 88. These constant delays are relevant to the issue of those solicitors’ legal costs. These delays continued during the period when the defendants were acting for themselves; after the hearing was adjourned shortly before the conclusion of the evidence, the defendants’ applications to call more evidence resulted in the adjourned hearing date being put off five times.

The relevant statutory provisions

43. UCPR r 20.26 provides:

“20.26 Making of offer

(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.

(2) An offer under this rule:

(a) must identify:

(i) the claim or part of the claim to which it relates, and

(ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and

(b) if the offer relates only to part of a claim in the proceedings, must include a statement:

(i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or

(ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and

(c) must not include an amount for costs and must not be expressed to be inclusive of costs, and

(d) must bear a statement to the effect that the offer is made in accordance with these rules, and

(e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and

(f) must specify the period of time within which the offer is open for acceptance.

(3) An offer under this rule may propose:

(a) a judgment in favour of the defendant:

(i) with no order as to costs, or

(ii) despite subrule (2) (c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff's costs, or

(b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or

(c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer.

(4) If the offeror makes an offer before the offeree has been given such particulars of the offeror's claim, and copies or originals of such documents available to the offeror, as are necessary to enable the offeree to fully consider the offer, the offeree may, within 14 days of receiving the offer, give notice to the offeror that:

(a) the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents, and

(b) in the event that rule 42.14 applies to the proceedings, the offeree will seek an order of the court under rule 42.14 (2).

(5) The closing date for acceptance of an offer:

(a) in the case of an offer made two months or more before the date set down for commencement of the trial--is to be no less than 28 days after the date on which the offer is made, and

(b) in any other case--is to be such date as is reasonable in the circumstances.

(8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer.

(9) An offer is taken to have been made without prejudice, unless the notice of offer otherwise provides.

(10) A party may make more than one offer in relation to the same claim.

(11) Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer.

(12) A notice of offer that purports to exclude, modify or restrict the operation of rule 42.14 or 42.15 is of no effect for the purposes of this Division.”

44. Although referred to by Roberts Legal to Vaikom Rajeev Criminal and Commercial Lawyers in their letter of 30 August 2013, as well as by the plaintiff, the defendants make no reference to s 40 Defamation Act 2005 (NSW) in their written submissions.

45. Section 40 provides:

“40 Costs in defamation proceedings

(1) In awarding costs in defamation proceedings, the court may have regard to:

(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), and

(b) any other matters that the court considers relevant.

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

(3) In this section: “settlement offer” means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.”

The offers between the parties

46. Regrettably, the parties did not attach, let alone discuss, the offers made by the opposing side, although the defendants had the opportunity to do so in that the timetable provided for submissions in reply. I have set out the correspondence in question in chronological order.

30 November 2012: Roberts Legal to the plaintiff

47. The text of Roberts Legal’s letter to the plaintiff dated 30 November 2012 is as follows:

“We refer to the above matter. Our clients deny any liability to you for defamation and will defend the claim vigorously and seek costs of the proceedings against you on an indemnity basis.

On our instructions you have in fact made the statements and/or sent the emails that have been attributed to you and, therefore, our clients have an absolute Defence under Section 25 of the Defamation Act 2005.

Our clients already have unequivocal evidence that the ‘[email protected]’ email account was linked to your mobile phone number. We also have compelling evidence that you are responsible for the ‘[email protected]’ email account and are instructed to issue a Subpoena to Google in relation [sic] that account to further verify your ownership.

In our view, it is inevitable that your role in the emails sent from the above accounts will be exposed in open Court and that Judgment in relation to these proceedings will be entered in favour of our clients together with costs.

In the circumstances, and so as to position our clients with respect of costs should you continue to prosecute the proceedings, we are instructed to offer settlement of the proceedings on the basis that Judgment is entered in favour of our clients by consent.

The offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 and the principles in Calderbank v Calderbank [1975] 2 All ER 333 and shall remain open for a period of 28 days. In the event that this offer is not accepted and the matter proceeds to hearing with Judgment entered in favour of our clients on terms no less favourable than this offer, our client will rely on this letter and Rule 42.15A in support of an application for indemnity costs against you.

We suggest that you obtain independent legal advice in relation to this matter and the implications of you not accepting this offer without delay.”

48. This was accompanied by a Notice to Admit Facts dated 30 November 2012.

Does this offer of compromise/Calderbank offer warrant the award of indemnity costs?

49. This offer of compromise for judgment by consent was made at a time when the general position was that no reference should be made to costs in such offers: Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; UCPR rr 20.27 and 42.13A; see [20.27.10A] in P. Taylor SC, Justice G. Bellew, M. Meek SC, Dr E. Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis, Australia). As such, the offer having been made prior to 7 June 2013, should be taken to have been made on the basis of costs being paid on a party/party basis.

50. The meaning of “compromise” is that an offer must reflect some real element of compromise: Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353. However, there is no compromise here. What is sought is total victory, namely judgment for the defendants and costs. What is more, the offer of compromise clearly states it is made “so as to position our clients with respect of costs should you continue to prosecute the proceedings”. In Ritchie's Uniform Civil Procedure New South Wales at [20.26.10], the authors note that “the offer of compromise procedure is not to be used simply as a strategy to trigger an ultimately successful party’s automatic award of costs on an indemnity basis”.

51. I further note that the offer of compromise does not refer to the cross-claim, which may be permissible, but that would limit the indemnity costs to the claim the subject of the offer: Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17. This would mean, at the very least, that this offer cannot be relied upon in relation to the cross-claim. As the claim and cross-claim are inextricably intertwined, I consider this is one of those rare cases where the omission of the cross-claim (which was clearly envisaged, as the defendants’ next offer of compromise makes clear) should be similarly fatal to this offer of compromise.

52. These factors, individually as well as in combination, give rise to exceptional circumstances which mean that the offer of compromise does not provide a basis upon which indemnity costs could be ordered.

53. As to Calderbank offers, the relevant factors are set out in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 at [23]‑[29], namely:

1. the stage of the proceeding at which the offer was received;

2. the time allowed for the offeree to consider the offer;

3. the extent of the compromise offered;

4. the offeree’s prospects of success, assessed as at the date of the offer;

5. the clarity with which the terms of the offer were expressed; and

6. whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.

54. As to (a), (b) and (d), an offer made to a litigant in person within weeks of having commenced the litigation and giving him 28 days over the Christmas period to find a solicitor to advise him would not satisfy the relevant criteria. I note the observations of the Court of Appeal to this effect in Stokes v Ragless.

55. The offer does not refer to the cross-claim, as this is before cross-claim had been put on. It is permissible to make a Calderbank offer for just part of the proceedings: Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd [1994] FCA 302. This would mean, however, that this offer cannot be relied upon in relation to the cross-claim. Once again, given the interconnection between the claim and cross-claim, it is hard to see how it would be unreasonable for the plaintiff to have accepted this offer if a cross-claim was then to be brought. There is nothing in this letter indicating that the settlement would be an end to the litigation between the parties.

56. Walk-away offers can be acceptable in a Calderbank offer: Barnes v Forty Two International Pty Limited (No 2) [2015] FCAFC 19 at [18]. However, the offer goes beyond a “walk away” offer in that it seeks complete victory for the defendants, namely judgment for them in circumstances where the plaintiff would be liable for their costs.

57. It must be shown that it was unreasonable for the plaintiff to have refused the offer: Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 at [218] per Miles, Heerey and Madgwick JJ. All that the defendants say is that they did better at the trial and that the plaintiff should have known his lies about not setting up the account would not be accepted, even though he did not actually compose the matter complained of. At this very early stage of the litigation, given the complexity of liability for publication, and where no defence had been filed, it was not unreasonable for the plaintiff to have refused the offer.

58. I note that, as is set out in more detail below, in the alternative to all of the above findings, factors of the kind discussed in Jones v Sutton (No 2) [2005] NSWCA 203 would also warrant this being regarded as an exceptional case where offers of compromise should not result in an award of indemnity costs.

59. The plaintiff was able to find a firm of lawyers in the Newcastle region within the 28 days, who replied to this offer with a comparatively modest counter-offer as follows:

13 December 2012: Turnbull Hill to Roberts Legal

60. The text of this letter is as follows:

“We refer to the above matter and your “without prejudice” correspondence dated 30 November 2012. We are instructed to act for the Plaintiff on a limited basis in respect of settlement of this matter.

Our client intends to proceed with his action in defamation and is confident that your clients will be unable to rely on a defence of justification or truth.

We are instructed as follows:

1. Contrary to your assertion about possessing “unequivocal” evidence, our client has provided us with evidence from Google to confirm that the last three (3) numbers of the Second Defendant’s mobile phone number (not our client’s number) match the Gmail account “[email protected]”.

2. Ms Harjit Singh, the President of the Indian Association Newcastle (IAN), is prepared to give oral or written evidence in these proceedings. The President will also respond to questions asked by the Plaintiff of the Association and will comply with any subpoena served on her in these proceedings.

3. Our client firmly denies ever having set up any ‘bogus’ email accounts in the name of either [email protected] or [email protected]. Our client will disprove suggestions of his involvement by tendering independent evidence in the course of the matter.

4. The evidence by way of email correspondence from the First and Second Defendants defaming our client is clear. The emails explicitly name our client and falsely declare that he has been fraudulent and/or responsible for emails sent from the above accounts, which the Plaintiff maintains is not true.

5. Our client has spoken to a man named Asif Syedulla, who has learned that the Defendants may have put forward his name as a defence witness or used his name in support of their defence. Mr Syedulla has confirmed to our client that he has not had any conversations with our client about emails (or this matter generally) and has made it clear to our client that he has not signed any statement and does not propose to give evidence for the Defendants. Our client will also give sworn evidence that he has not discussed email correspondence with Mr Syedulla and has not indicated to a third party any intention to set up bogus email accounts.

Our client has been active in the Indian community and public life for the last ten (10) years. We are instructed that our client has organised many Indian community events in Sydney, Melbourne and Newcastle. Our client has demonstrated his commitment and passion towards the Indian community and over the years has earned a good name and reputation amongst the Indian community throughout Australia.

Our client submits that defamatory, untrue emails have caused great damage to his reputation as an event organiser and respected member of the Indian community, as the email correspondence was sent by the Defendants to over 380 Indian families. Any defence based on justification, truth or contextual truth will be vigorously opposed. Our client has further evidence to confirm that the first Defendant’s complaints to the Police are inconsistent with emails sent to the Indian community and our client will rely on those inconsistencies to disprove any defence of justification in the proceedings.

Notwithstanding the above, our client is prepared to settle the matter on a commercial basis only and without admission of liability as follows:

1. First Defendant to publish an apology to relevant members of the Indian community (in a form acceptable to the Plaintiff) and pay the sum $10,000.00 to the Plaintiff within 21 days of acceptance of this offer;

2. Second Defendant to publish an apology to relevant members of the Indian community (in a form acceptable to the Plaintiff) and pay the sum of $10,000.00 to the Plaintiff within 21 days of acceptance of this offer.

3. If the Defendants comply with terms one (1) and two (2) above, the Plaintiff will withdraw the proceedings against the Defendants.

This Offer of Compromise is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) and remains open for 28 days, namely, it is open for acceptance on or before 14 January 2013 at 4:00pm, time remaining of the essence.

This letter will be tendered in Court on the question of costs if our client receives a more favourable judgment in the proceedings and our client will seek indemnity costs from your clients.”

61. This offer was never replied to. As the plaintiff did not do better, its only relevance is in relation to s 40 issues. Given the contents of the offer, especially the modest damages sum sought, I consider this to be a reasonable response in terms of the plaintiff’s obligations under s 40.

Mediation 26 August 2013

62. The parties attended mediation with their legal advisers but the matter did not settle. The parties give conflicting accounts of what occurred but it would appear that a figure of $100,000 was sought by the first defendant in relation to the cross-claim (the plaintiff says it was $200,000). The first defendant says that this sum was just for costs, although it is hard to see how the costs of the whole proceedings (let alone the cross-claim) could have amounted to $100,000 after seven months of litigation which consisted essentially of issuing 20 or more subpoenae, a short argument on imputations and filing a defence and cross-claim. As the mediation was followed by an offer of compromise seeking $100,000 damages for the cross-claim plus costs, it is more likely than not that the same offer was made during the mediation.

63. There is no reliance upon the offers made at mediation but in view of the contents of the offer of compromise, I consider it more likely than not that the plaintiff’s version of the offers made (which is the same as that which he said the defendants sought at the mediation) is the correct one.

30 August 2013: Roberts Legal to Vaikom Rajeev Criminal and Commercial Lawyers

64. This is the defendants’ second offer, following upon the rulings on the plaintiff’s imputations on 12 June 2013, the filing of the defence and cross-claim (by the first defendant) on 12 July 2013, the filing of a defence to the cross-claim on 19 August 2013 and the failed mediation on 26 August 2013. By this stage all parties knew where they were going.

65. The letter starts by referring to adverse credit findings concerning the plaintiff in other proceedings, as well as the plaintiff’s previous offer, and goes on to state:

“We note your comments concerning the Road & Maritime Services IP Address being a shared address with other employees, however, we draw your attention to the computer log for Mr Mallegowda’s RMS workstation at page 49 of the bundle to Dr Watt’s Expert Report. You will note that, allowing for adjustment for different time zones, Mr Mallegowda was accessing gmail from his RMS computer at the time the [email protected] account was created. With respect, to suggest that the [email protected] account was created by any other Roads & Maritime Services employee at the Newcastle office is fanciful. No other employees had any connection with the Indian Association of Newcastle or reason to attack Mr Sood.

We note also that you client asserts that Mr Sood himself was responsible for the [email protected] and that you rely on documents produced by our client in response to a Notice to Produce dated 26 March 2013. It is illogical and untenable to suggest that Mr Sood would publish an email to the Newcastle Indian Community defaming himself, presumably with the view to then sending another email [sic] the community attributing the email to your client. In view of the other evidence against your client such an argument would only benefit our client’s claim for aggravated damages and indemnity costs.

The suggestion that Mr Sood was responsible for the email sent from the [email protected] account is ludicrous. It is beyond doubt that the email account was created by someone accessing the internet via the Roads & Maritime Services IP Address, that person being your client.

Further, in relation to the deletion of the [email protected] account prior to 25 August 2012 we enclose a copy of an email sent from Mr Sood to [email protected] [sic] on 23 August 2013 (at 3:07pm) and refer you to pages 126 and 51 of the bundle to Dr Watt’s Expert Report. It is apparent that your client received the email sent by Mr Sood to [email protected] on 23 August 2012 and took immediate steps to delete the Gmail account, including by contacting Mr Vishweshwariah for assistance.

The matters set out above are only part of the evidence that we have already amassed in support of our clients’ Defence and Cross Claim.

With respect, in our view, your client has no prospect of success. Simply, your client has been caught out sending anonymous and defamatory emails and must now either accept responsibility for his actions or live with the damning Judgment that will inevitably be entered against him if the matter is not settled. Your client should perhaps consider the impact on his own reputation in the community of a detailed Judgment on the public record addressing his calculated steps to defame Mr Sood and commencement of proceedings against two (2) respectable members of the Indian community in relation to emails that in truth originate from him.

Our clients have been put to substantial expense already as a result of your client’s mischievous conduct; including the commencing of these proceedings under the mistaken belief that his responsibility for the [email protected] and [email protected] accounts could not be proven. Our client’s only desire to settle this matter is because of the perceived inevitable bankruptcy of your client following Judgment being entered in favour of our clients with costs.

Notwithstanding that we consider that Mr Sood is entitled to substantial damages, including aggravated damages, and indemnity costs in view of your client’s conduct, in an attempt to resolve this matter, and to position our clients with respect to costs should the matter proceed to a final hearing, we are instructed to offer settlement of all matters before the Court on the following basis:

1. Judgment for the Defendants in relation to the Plaintiff’s Claim,

2. Judgment for the Cross Claimant in relation to the Cross Claim in the sum of $100,000.00, and

3. Without limiting the existing costs orders made in relation to the proceedings:

(a) an Order that the Plaintiff pay the Defendants’ costs on a party/party basis as agreed or assessed, and

(b) an Order that the Cross Defendant pay Cross Claimant’s costs on a party/party basis as agreed or assessed.

This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 and the principles in Calderbank v Calderbank [1975] 2 All ER 333 and shall remain open for a period of 28 days. In the event that this offer is not accepted and the matter proceeds to hearing with Judgment entered in favour of our clients on terms no less favourable than this offer, our clients will rely on this letter, Rules 42.14 and 42.15A and Section 40 of the Defamation Act in support of an application for indemnity costs against your client.

We suggest that your client carefully consider this offer, and the overwhelming evidence already provided, and that your firm also carefully evaluate the truth of the matters that your client may be asserting in his defence if there is to be any prospect of avoiding the need to have the matter determined by the Court with further substantial costs to all parties.”

66. Contrary to the previous offer, there is a costs order set out (cf Whitney v Dream Developments Pty Ltd). This is an offer made after the “cut-off” offer of compromise date of 7 June 2013 and the presumption of an order for costs for offers before that date does not apply: see Ritchie’s Uniform Civil Procedure New South Wales at [20.27.10A]. The real difficulty with this offer of compromise is that the combined offers (see the use of the word “and”) include a claim of damages on the cross-claim of $100,000, which is far in excess of the amount of $5,000 awarded.

67. This is a whole offer, not a severable one and, as to the cross-claim, this was not an offer which was bettered at the trial.

68. Viewing this letter as a Calderbank offer, it is similarly unacceptable, for the same reasons.

The submission that “no further compensation was ever sought” for the cross-claim

1. Any other issue germane to the assessment of these costs, such as the costs payable by the parties for the assessment.

8. Mr Bellach is to advise the court as well as the parties of any issues in relation to the costs of the referral, including but not limited to the payment of referral fees in advance.

9. Liberty to apply in relation to the implementation of the orders set out above.

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Amendments

12 June 2019 - Paragraph 90(d): The words "cross-defendant" inserted.

Decision last updated: 13 June 2019