Moseley v AB (No 2)

[2017] NSWSC 1812

Supreme Court

New South Wales

Medium Neutral Citation:	Moseley v AB (No 2) [2017] NSWSC 1812
Hearing dates:	27 February; 17 May and 28 August 2017
Date of orders:	20 December 2017
Decision date:	20 December 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court directs that AB forward to the Associate of the Court as presently constituted in Chambers short minutes of order reflecting this judgment on or before 10am, 8 January 2018 together with a note indicating whether or not the Intervenor objects to those orders. In the event that there is no dispute, the Court will deal with the orders administratively in Chambers. In the event that there is a dispute as to orders, the Intervenor shall propose alternative orders by 15 January 2018. In the event of such a dispute, the Court will deal with the orders by a determination made in Chambers. There is liberty to apply by 4pm, 8 January 2018 in the event that any variation to these directions is sought by either party.
Catchwords:	ORDERS – suppression and non-publication orders – orders sought under s 7 – final issue as to orders regarding the naming of schools – orders sought by applicant granted   COSTS – whether an Intervenor is subject to costs orders – principles regarding costs in case of intervention – conduct of proceedings – directions
Legislation Cited:	Australian Broadcasting Corporation Act 1983 (Cth) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Court Suppression and Non-Publication Orders Act 2010 (NSW) Serious Sex Offenders Monitoring Act 2005 (Vic) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Arian v Nguyen (2001) 33 MVR 37 Arnold v Queensland (1987) 73 ALR 607 Attorney-General (Ontario) v Winner [1954] AC 541 Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42 City of Burnside v Attorney General of South Australia (1994) 63 SASR 65; [1994] SASC 5136 Commonwealth of Australia v Gretton [2008] NSWCA 117 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Cretazzo v Lombardi (1975) 13 SASR 4 CSR Ltd v Eddy (2005) 226 CLR 1 D1 v P1 [2012] NSWCA 314 EKO Investments Pty Limited v Austruc Constructions Ltd [2009] NSWSC 371 G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263 Griffin v Pantzer (2004) 137 FCR 209 Hamod v State of NSW [2011] NSWCA 375 Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (No 2) [2007] FCA 36 Johnston v Cameron [2002] FCAFC 301 Knight v Clifton [1971] Ch 700 Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 Metlife Insurance Ltd v Visy Board Pty Ltd (Costs) [2008] NSWSC 111 Moseley v AB [2017] NSWSC 916 Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 Murphy v Director of Public Prosecutions and Another (1985) 7 FCR 55 National Wide News Pty Limited v Qaumi [2016] NSWCCA 97 Oshlack v Richmond River Council (1998) 193 CLR 72 Peters v Peters (1907) 7 SR (NSW) 398 Re Kerry (No 2) [2012] NSWCA 194 RJE v Secretary to the Department of Justice (2008) 21 VR 526 Rinehart v Welker (No 3) [2012] NSWCA 228 Ritter v Godfrey [1920] 2 KB 47 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 Scharer v Counting Instruments Ltd [1986] 1 WLR 615 Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 42 FLR 331 Tilley v Children’s Guardian [2017] NSWCA 174 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell (No 2) [2012] NSWCA 129 Trade Practices Commission v TNT Management Pty Ltd; sub nom Trade Practices Commission v TNT Management Pty Ltd (No 3) (1981) 39 ALR 665 Waterman v Gerling (Costs) [2005] NSWSC 1111 Westpac v Gibbons (No 4) [2012] SASC 80 Williams v Lewer [1974] 2 NSWLR 91 Xat Ky v Australvic Property Management Pty Ltd (No 2) [2007] FCA 1785
Texts Cited:	P E Nygh and P Butt (eds), Butterworths Australian Legal Dictionary (Butterworths, Sydney, 1997)
Category:	Costs
Parties:	Benjamin Peter Moseley (Plaintiff) The Trustees of the Roman Catholic Church for the Diocese of Parramatta (First Defendant) AB (Second Defendant / Applicant on Motion) Australia Broadcasting Corporation (Intervenor)
Representation:	Counsel: D R Sibtain and N Compton (Second Defendant / Applicant on Motion) M J Lewis (Intervenor)   Solicitors: Fordham Lawyers (Plaintiff) Makinson d'Apice Lawyers (First Defendant) Walter Madden Jenkins Solicitors (Second Defendant / Applicant on Motion) ABC Legal & Business Affairs (Intervenor)
File Number(s):	2015/136248

Judgment

1. HIS HONOUR: By way of a further amended notice of motion filed 16 December 2016 (hereinafter referred to as “the motion”), the second defendant, known as “AB” (by order of this Court on 21 November 2016) in personal injury proceedings, applied for orders under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) and for injunctive relief based upon a breach of “implied undertaking”.

2. Adjusting the form of the motion into a continuous numerical sequence, the orders sought were as follows:

1. The second defendant be granted short service of this application.

2. An order, until further order, pursuant to s 7 of the Act, prohibiting the publication of any material which is capable of identifying the second defendant, AB, in connection with the allegations the subject of these proceedings including, without limitation:

1. the second defendant’s name or likeness;

2. any school the subject of the said allegations;

3. the name of any employer of the second defendant, from time to time; and/or

4. the name of any organisation in which the second defendant is or at any time has been involved with.

3. Further or alternatively, an order that the ABC be restrained from publishing any allegations concerning the conduct of the second defendant in connection with persons other than the plaintiff, including information concerning past employment.

4. Further or alternatively, an order that the ABC be restrained from using in any manner (including by way of publication) any information obtained (either directly or indirectly) from documents produced under subpoena or from the amended statement of claim.

5. Any other order the court sees fit.

3. On 11 July 2017, the Court gave judgment in relation to the motion: Moseley v AB [2017] NSWSC 916 (“Moseley No 1”). The conclusion reached with respect to the second prayer for relief was as follows at [120]:

[120] It is unnecessary to express a view as to which of the approaches to the construction of s 8(1)(c) (and, in particular, the notion or concept of necessity) in D1 v P1 should be preferred in the present matter. That is because, on the evidence in these proceedings, AB has established that orders should be made under s 7 of the Act upon either construction. In my view, AB has established, on the balance of probabilities, that the making of a suppression or non-publication order or orders is necessary to protect the safety of DD in the sense that, absent the order or orders being made, it would be probable that DD could suffer harm or under the imminence of harm construction that the order or orders are necessary to protect DD’s safety simpliciter.

4. The Court found it unnecessary to rule upon the fourth prayer for relief (see [2(4)] above) in view of the primary determination that orders should be made under s 7 of the Act, and in view of the common position of the parties the Court did not need to determine the application for injunctive relief if AB had made good her application for suppression or non-publication orders.

5. The Court observed at [123] that there was a concurrence between the parties that questions as to the form of orders be held over until the determination of the merits of the motion. Particular reference was made in that respect to questions which had arisen in the proceedings as to the duration of the orders and whether the orders should contain any limitation on the publication of the name any school in which AB worked pursuant to cl (b) of the second prayer for relief (see [2(2)(b)] above). The Court made direction for AB to bring in short minutes of order identifying any variations of the orders sought in the motion in conformity with the Court’s judgment together with submissions in support of the same and for the Intervenor to file any submissions in reply. The Court contemplated the balance of issues may be dealt with on the papers subject to any application by either party for a short oral hearing.

6. Written submissions were filed in accordance with the directions of the Court. Accompanying the submissions by AB were short minutes of order seeking orders which were different and wider than those contained within the motion. The parties sought an oral hearing which was conducted on 28 August 2017.

7. At the broadest level, the written submissions of the parties joined issue as to the width of the orders sought by the AB in the short minutes of order. The parties also joined issue as to particular aspects of the proposed orders, reflective of the order sought in [2(2)] namely, whether the name of schools should be included in the non-publication order and whether there should be limitation as to the geographic scope and duration of the orders (although this was only faintly argued). Additionally, both parties put opposing submissions as to costs with AB seeking an order for costs against the Intervenor for the costs of the proceedings or alternatively an order that the Intervenor pay 85% of AB’s costs. The Intervenor opposed any order for costs being made against it.

8. At the further hearing of the matter a number of these issues dissolved. Counsel for AB no longer pressed the orders sought in the short minutes of order and confined the relief sought to the form of order set out in [2(2)] above. The issue as to geographic limitations was no longer pressed by the Intervenor and the parties were content that orders be made which would result in the duration of the orders being until any verdict delivered in the principal proceedings or further order of the Court

THE ISSUES

9. What was left in the balance then concerned the following issues:

1. Should the Court make the orders sought in [2(2)(b)] above; and

2. Should an order for costs be made against the Intervenor as sought in the primary or alternative submissions of AB.

10. The balance of this judgment shall be devoted to the resolution of those questions.

RELEVANT BACKGROUND

11. On 7 May 2015, the plaintiff, Benjamin Peter Moseley, filed a statement of claim in which he sought damages from the first defendant, the Trustees of the Roman Catholic Church for the Diocese of Parramatta with respect to allegations made against a teacher, AB, whom the plaintiff claimed had severely abused him as a student.

12. On or around 3 September 2015, the plaintiff filed his statement of particulars and the first defendant filed its defence.

13. On 16 May 2016, the first defendant filed a notice of motion seeking a cross-claim against AB.

14. On 30 June 2016, AB was joined as a cross-defendant. Later, on 30 November 2016, the plaintiff was granted leave to join AB as the second defendant (by a motion filed by the plaintiff on 25 October 2016 with an accompanying affidavit attaching the proposed amended statement of claim).

15. By an amended statement of claim filed 12 December 2016 (“the amended statement of claim”), the plaintiff sought damages for breach of a duty of care said to be owed by the first defendant and AB based upon certain particularised conduct of AB concerning the plaintiff in the 1980’s and 1990’s. The plaintiff also advanced allegations concerning the conduct of AB regarding other persons.

16. On 17 November 2016, AB filed the original application for suppression and non-publication orders. By the second prayer for relief in that application, AB sought a general suppression order granting or restricting the disclosure of details of the proceedings or alternatively any information that could identify AB. The order sought in that respect was as follows:

Pursuant to section 8 of the Court Suppression and Non-Publication Orders Act 2010 No 106 the Cross Defendant seeks a suppression order that prohibits or restricts the disclosure of the following information of the Cross Claim and the substantive Statement of Claim being:

i. All the details of the pleadings

In the alternative

ii. Any information which could identify the Cross Defendant.

(“the suppression orders”.)

17. In the alternative, AB sought, by the third prayer for relief in the original application, a non-publication order to suppress certain details concerning AB and her daughter who was described in Moseley No 1 as “DD” in similar but not identical terms to the order sought in [2(2)] above. It will be noted that, in seeking the suppression or non-publication orders at that stage, reliance was placed solely on s 8(1)(c) of the Act upon grounds that were founded exclusively on the risk of harm to DD.

18. On 16 December 2016, AB filed an amended notice of motion the most significant effect of which was to seek, in the alternative, a non-publication order of a more general character (the order in [2](3)] above) and a claim for injunctive relief (again in the alternative) described above (the order in [2(4)] above) (hereinafter referred to as “the amended motion”).

19. On the first day of hearing of the amended motion for the consideration of the making of final orders, AB no longer pressed for the suppression order in the second prayer for relief. Costs were reserved in that respect.

20. The proceedings ultimately went forward upon the orders appearing in [2(2)]-[2(4)] of the motion.

THE RELEVANT ASPECTS OF MOSELEY NO 1

21. AB drew attention to certain aspects of the judgment in Moseley No 1 bearing upon the disposition of the issues to which this judgment.

22. It was correctly submitted that the Court found that non-publication orders were necessary to protect the safety of the DD. Reference had already been made to [120] in Moseley No 1. Reference should also be made to [111] which was in the following terms:

[111] It follows that making the orders under s 7 will not merely serve the purposes of convenience, reasonableness and being sensible, but rather, are “necessary” to protect the safety of DD.

23. I also agree with the submissions of AB that the non-publication orders were directed to the prevention of the risk of DD occasioning severe harm as a consequence of the broadcast of allegations concerning AB. Reference was made by AB to [87], [92], [94] and [109] of Moseley No 1. Each of those paragraphs concerned the analysis by the Court as to the probability DD would suffer harm in the nature of mental harm or harm to her wellbeing by means of self-harm, occasioned by mutilation or attempted or completed suicide if a non-publication order was not granted. Those paragraphs, together with two additional references to [88] and [91], are as follows:

[87] I am satisfied that AB has established, on the evidence in these proceedings, that it is necessary that an order should be made under s 7 of the Act to protect the safety of DD pursuant to s 8(1)(c) of the Act upon the basis of the probability of harm as comprehended in the probability of harm construction and the aforementioned principles (at [18]-[30] and [84]-[86] of this judgment). My reasons for this finding appear below.

[88] Central to this resolution of that issue is the evidence of Dr Nielssen, which, in this matter, is entirely contained within an unchallenged report. A proper understanding of the report, as in any document, requires that it be read in its entirety and not, as the Intervenor tended to do in its submissions, in a piecemeal fashion.

[89] Dr Nielssen affirmed, in answer to question 1, there was a “significant risk” that DD would suffer harm in the form of harm to her mental health and wellbeing if there was a broadcast of the allegations against AB. In question 2, he answered why there was a significant risk that such “an impact” would occur and made further observations in that respect (as well as observations as to the nature and extent of harm) in answer to question 3, albeit in the consideration of treatment options.

[90]The Intervenor contended that the opinion, so expressed, fell short of a conclusion that it was probable such harm would occur if there was a broadcast of the allegations against AB. The Intervenor’s submissions in support of that contention were essentially confined to a proposition that the use of the concept “significant risk” in the questions posed necessarily restricted any answers to a realm lying outside the probability of an occurrence. For the three conjoint reasons given below, I do not consider this contention may be accepted, if attention is focused upon the entirety of the report of Dr Nielssen, particularly the opinions he expressed under the headings “Psychiatric Disorders” and “Opinion” in his report.

[91] First, Dr Nielssen was asked to prepare a “psychiatric report” and in that light, to consider the “psychological effect” of media coverage of the “mother’s situation” (being a reference to the broadcast of the allegations). This is precisely how he gave his opinion, first by making a diagnosis (and giving the reasons for the same) and then answering the questions posed. When Dr Nielssen provided his answer to question 2 as to why there is a significant risk he did so, in the first sentence, in terms of the factors which were closely connected to, if not pivotal to, his diagnosis of a personality disorder (having regard to DD’s psychiatric history).

[92] When seen in that light, and, in particular, the psychiatrist’s reference to DD’s “history of markedly unstable mood” and “tendency to over react to any set back and act in an impulsive and self-defeating way”, it is clear Dr Nielssen was approaching the question of “significant risk” not in terms of a possibility but, having regard to his diagnosis of DD, the likelihood of harm or, put slightly differently, the propensity of DD to so act in a particular way given the diagnosis and recently reported history. Dr Nielssen was dealing with known features of the disorder which corresponded to DD’s psychiatric history, including recent reporting of suicidal thoughts. As I will later discuss, the context for the triggering of this response was the broadcast of the allegations (as outlined in the recent reporting of suicidal thoughts and the final sentence of the answer to question 3). This first basis for my conclusion is confirmed, as I will now discuss in my second consideration, by a closer analysis of the answer to question 3.

…

[94] When those interlocking components of the report are understood in that way, and account is taken of the connection between his diagnosis of personality disorder and the psychiatric and general history of DD (including the recently reported incidence of suicidal thoughts predicated upon the prospect of the broadcast of the allegations), in substance, Dr Nielssen gave an opinion that there is a real likelihood of an adverse impact upon DD’s mental health and wellbeing including self-harm by DD of a severe character, namely, suicide attempts and completed suicide. In doing so, Dr Nielssen specifically employed the language of probability.

…

[98] Dr Nielssen did refer to DD’s perceived loss of support from her mother as being a factor likely to have an adverse effect of her mental health in his answer to question 2. It is reasonable to conclude, therefore, that it is one of the reasons why there was a significant risk that an adverse impact may occur. However, to elevate that conclusion to one that would eliminate, reduce or displace the broadcast of the allegations against AB as the primary or central cause of the significant risk of detriment to DD’s mental health and wellbeing (which is implicit in the Intervenor’s submission) would be to misunderstand Dr Nielssen’s report.

…

[100] Questions 1, 2 and 3 represent sequential questions with the starting point being a question as to the relationship, by way of risk, between the broadcast of the allegations against AB and DD’s mental health and wellbeing. The reference to suicidal thoughts by DD in the psychiatric history (“stepping out in front of a bus”) is directly related to DD’s hearing about her “mother’s situation” being itself connected to the opening paragraphs of the report which refer to, as I have noted, media coverage of her mother’s situation.

…

[103] As to the nature of the harm, I consider the answer to question 1, when read with the answers to questions 2 and 3, identify the likely harm to be that of mental harm and harm to the wellbeing of DD. In the latter case, Dr Nielssen’s conclusion was that of physical harm in the form of self-harm based upon the diagnosed disorder which ranged from reported self-mutilation to suicidal thoughts potentially actioned through attempted to completed suicide. This also accords with recent occurrences involving DD as outlined in the three passages from the fourth McTegg affidavit above (at [52]-[54] of this judgment). I do not consider the treatment options of counselling represents the existence of a lower level of risk essentially for the reasons developed below.

…

[109] This is not, however, a case where the allegations have already received a public airing and thereby the proposed orders are robbed of their utility. In the result, the broadcast represents a discrete fresh event to which Dr Nielssen’s opinions as to the likelihood of harm are directed. The orders are directed to the prevention of the very risk Dr Nielssen opined would emanate from the broadcast.

24. For completeness, I also refer to [112]-[114] of Moseley No 1 as follows:

[112] It is not strictly necessary to make any ruling under the imminence of harm test in the light of the aforementioned discussion of a probability of harm. It was accepted by Mr Lewis for the Intervenor, correctly in my view, that the “second limb”, the imminence of harm construction, was only necessary to consider if the “first [was not] made out”, namely, the probability of harm. However, I will briefly state my reasons for a finding that AB has made out the ground under s 8(1)(c) under that construction, albeit compendiously, having regard to those conclusions overlapping with the findings made with respect to the probability of harm construction. It should not be taken from that approach that I consider there is a deficit in AB’s case under this heading. In substance, I consider AB’s case in this respect to be compelling.

[113] Having regard to my findings that the prospective harm is severe, it may be more readily concluded, under this test, that an order is necessary, even if the risk were a possibility (contrary to my findings above) as opposed to a probability: D1 v P1 at [51].

[114] As to the nature and degree of the likelihood of harm, I adopt, without repetition, the aforementioned conclusions regarding the probability of harm at [91]-[96] and [99]-[103]. It will suffice to mention briefly the factors contributing to the conclusion there was an imminence of harm.

(Paragraph [120] is also relevant and is extracted at [3] above.)

FORM OF THE ORDERS: THE NAMING OF SCHOOLS

Submissions of the Parties

Submissions for AB

25. AB made the following written submissions in support of the non-publication orders incorporating a restriction on the naming of schools as follows:

[6] In order to excise this element of the relief sought, it was for the Intervenor to prove that the naming of the schools would not lead to the identification of AB. The evidentiary onus shifted to the Intervenor, once it was established that AB had been employed at a number of schools and that there were allegations made against AB concerning her conduct at those schools, to prove that the identification of those schools would not be capable of leading to the identification of AB.

[7] Prima facie, the identification of a school at which AB worked could lead to her identification. The collocation of references to her gender, the relevant time period in which the alleged acts occurred, and the identity of at least one complainant could all lead to AB’s identification. The Intervenor leads no evidence, and makes no submission, that will not, save for a bare assertion.

[8] The absence of evidence on the issue leads to the inevitable conclusion that the orders for which AB presses are necessary and appropriate. Should the Intervenor wish to publish any material concerning the subject matter of these proceedings, it would be for the Intervenor to satisfy itself against the risk of identification of AB. If, for example, there were 10 female teachers who taught students at each school in each relevant school year during the relevant calendar years, the Intervenor might conclude that publication of the name of the school would not lead to the identification of AB. Without the benefit of evidence going to that issue, the appropriate course is for the Court to make a general order. Such an order will avoid the unacceptable consequence identified by the Act, and provide the protection sought by AB.

26. In oral submissions, those submissions were supplemented as follows:

1. In Moseley No 1, the Court found that “identification” would have the adverse consequences for DD, if AB was identified in that judgment.

2. AB led evidence that she was a teacher and certain things happened to students of certain ages in those schools. The evidentiary onus shifted at this point to the Intervenor to show the naming of the schools would not identify AB. Submissions to the contrary were no more than an ipse dixit.

3. There is sufficient material before the Court to find that references in the pleadings to particular schools and times would lead to identification in the absence of further evidence to contradict the same.

4. The test as to whether information would tend to reveal the identity of a party is objective and subjective. An objective consideration is whether a party would tend to be identified in a particular set of circumstances. The question became – are there persons in the community, who, if they knew a teacher worked at “School A” and “School B”, would be more likely to identify AB, that is, the scope for identification would increase. Reference to subjects taught would further increase the prospect. It was submitted “as soon as one starts to identify schools, one creates a paradigm of tendency because it’s not one particular school”.

Submissions for the Intervenor

27. The Intervenor made the following written submissions in reply with respect to this issue:

[3.6] The Intervenor says that, in the circumstances, a non-publication order preventing it from identifying “the schools in which the Second Defendant was employed” is unnecessarily broad, and publishing the identity of such schools could not identify (or tend to identify or otherwise) the Applicant and, still less her daughter.

[3.7] As to this, there is no evidence (or finding) for example that any broadcast by the ABC which identifies such a school would tend to reveal the identity of the Applicant (or her daughter) in circumstances where that broadcast is significantly de-identified and otherwise in compliance with the remaining orders sought in the Further Amended Motion.

[3.8] If there was any risk of identifying the Application (which there is not) it could only be understood as a remote (and not a real) risk of identification. In those circumstances, as non-publication order preventing publication of the identity of any such school should be considered unnecessary. Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301 at 395-396, R J E v Secretary to the Department of Justice (2008) 21 VR 526 at 533 and 541

28. The Intervenor made the following supplementary submissions in this respect:

1. AB bears the onus of establishing that a non-publication order is necessary.

2. There is a distinction between “a capacity to identify” or a likelihood of identification and a tendency to reveal an identity under s 7(a) of the Act. There is a higher standard in the latter which is reinforced by the fact that a breach of an order results in criminal penalty (s 16(1)) (the existence of a criminal offence is relevant to the construction of s 7 of the Act) and regard needs to be given to the scheme of the Act, in particular s 6 (the principle of legality: see [18] of Moseley No 1). The test is objective.

3. The only material concerning “schools” is found in the pleadings. In the absence of any evidentiary foundation, it was submitted, there were 30 teachers at the schools at “the particular time” that met the description of AB (although there was no evidence of that fact).

4. This is not a situation where the “dots” may be joined to identify AB.

Conclusion: The Naming of the School

29. Taking into account the objective the principles of open justice (see s 6 of the Act), the meaning of necessary and the construction of the safety ground in s 8(1)(c) as discussed in Moseley No 1 (at [18]-[29]), the Court may make a non-publication order under s 7 of the Act “on grounds permitted by [the] Act”: Tilley v Children’s Guardian [2017] NSWCA 174 at [38] (per Basten JA, with whom Meagher and Leeming JJA agreed). Section 8(1) requires that the order made must be “necessary” to achieve the objective “identified in the relevant sub-paragraph” (in this case s 8(1)(c)): National Wide News Pty Limited v Qaumi [2016] NSWCCA 97 at [20].

30. In order to establish that an order is necessary, it is not enough, as the Chief Justice stated in D1 v P1 [2012] NSWCA 314 (at [48]), that it appears to the Court that the proposed order is “convenient, reasonable or sensible”. However, the Chief Justice further stated, in the same paragraph of his judgment: “that is not to deny that whether necessity has been established will depend on the nature of the orders sought and the circumstance in which they are sought”.

31. In Moseley No 1, the Court found it was necessary that an order be made under s 7 of the Act upon the ground found in s 8(1)(c) in order to protect AB’s daughter DD.

32. That conclusion was reached, inter alia, upon the basis of the probability of harm to DD in the event there was a broadcast by the Intervenor of the allegations against AB. The nature of the harm was that of mental harm and harm to the wellbeing of DD through self-harm ranging from self-mutilation to suicidal thoughts, particularly actioned through an attempt to complete suicide (Moseley No 1 at [103]).

33. Returning to the Chief Justice’s observations in D1 v P1, the circumstance which established the necessity for an order having regard to s 8(1)(c) was, therefore, the likelihood of significant harm to DD if there was a publication by the Intervenor, as a national broadcaster, of the allegations against AB (namely, “the 7:30 Report”).

34. There is no dispute that, in the event of a finding was made that a non-publication order was necessary to protect the safety of DD, that the orders appearing in [2(2)] above would be appropriate, save for order [2(2)(b)]. That is the context in which this issue must be resolved. The relevant question then arising under s 7 of the Act is whether the publication of information as to the schools, the subject of the allegations, in the context of the scope of the proposed broadcast of allegations against AB, as constrained by the non-publication orders which will be otherwise made, would tend to identify AB as the person to whom the allegations are directed such that a failure to restrain that publication would likely lead to harm to DD.

35. In support of their respective contentions the parties primarily focused upon the amended statement of claim which was in evidence. However, AB also relied upon evidence demonstrating first, AB was a teacher (see Ex 4) and, secondly, that certain things happened to students of certain ages in the schools at which she taught. The first proposition is clear on the evidence. Counsel for AB did not make clear the basis for the second but there is an evidentiary foundation as to how such details would contribute to the identification of AB via evidence as to the foreshadowed story by a reporter engaged by the Intervenor in the form of an email from the reporter to the solicitor for AB, containing various allegations (“the foreshadowed story”) (see attached to the first affidavit of Ms McTegg affirmed 16 November 2016 referred to in Moseley No 1 at [31]; see also, material containing allegations regarding AB in Ex 4).

36. Thus, whilst the evidence does not descend to a level of detail referred to by the Intervenor, such as the number of teachers teaching in particular schools, there is evidence which illustrates how the publication of evidence as to the respective schools at which AB worked (where allegations were made against AB) would, as a matter of probability, identify AB, even if the Intervenor was otherwise bound by the remaining orders in [2(2)] (noting that the attention of the parties was fixed upon the particular requirements of the order concerning schools rather than the general form of the order which appears in the preamble to the proposed order at [2(2)]).

37. The foreshadowed story, in conjunction with the amended statement of claim, demonstrates that the identification of the schools at which AB worked substantially increased the risk of identification, even if, as the Intervenor submitted, any broadcast was significantly “de-identified” in compliance with the remaining particular orders in [2(2)]. In particular, when combined with AB’s gender, the position she held, the relevant period in which the alleged acts occurred, the identity of one complainant and the circumstances of the complaints, the addition of the names of schools significantly contributes to the identification of AB including, in particular, sections of the community which directly or indirectly have a connection with those schools, such as teachers and school children and their parents, and, those in areas of employment connected therewith.

38. To these considerations might be added that the Intervenor’s contentions, in this respect, seem to be at odds with its failure to object to the order regarding AB’s employers (see above at [2(2)(c)]) (there being an apparent overlap with the schools in which she was engaged).

39. In those circumstances, it is unnecessary to determine the question of onus or the issues of construction as to s 7(a) raised by the parties as, upon the above approach, the orders are available and appropriate upon AB bearing the onus and the construction proposed by the Intervenor. Nonetheless, whilst the submissions of the parties in this respect were not expansive, I propose to express some preliminary views on the issue of construction.

40. The Intervenor contended that the words “information tending to reveal the identity” in s 7(a) created a higher bar than “can be capable of identifying” or being prone or having a propensity to identify drawing, in that respect, upon authorities bearing upon the meaning of “likely” in various statutory contexts. Emphasis was placed upon the approach to the construction of statutory provisions where criminal penalties flowed from a contravention of an order. The Intervenor emphasised the principles of open justice. It was not suggested that an applicant must demonstrate the naming of schools would result, in and of itself, in actual disclosure or identification. The test was, however, said to be an objective one (a proposition partially accepted by counsel for AB).

41. The Intervenor supported these submissions by reference to two authorities: Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301 (“ASC”) (per Sackville J) and RJE v Secretary to the Department of Justice (2008) 21 VR 526 (“RJE”) (per Maxwell P, Nettle and Weinberg JJA). Reference was also made, in this respect, to the judgment of Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 42 FLR 331 (“Tillmanns Butcheries”) (per Pearce J);

42. Each of those authorities concerned the construction of provisions in which the meaning of the word “likely” was pivotal. The authorities appear to have been relied upon to illustrate that, whilst the word “likely”, when used in a statutory provision, may have a range of possible meanings, the context in which the word appears may indicate that the legislature was intending a meaning more akin to “probable” rather than “a real possibility”. By analogy of reasoning, the same approach was propounded with respect to the word “tending” when used in s 7(a) of the Act. Particular attention was given to the more stringent meaning attached to the word “likely” in ASC in the context of a provision resulting in a criminal offence (this being said to be analogous to the circumstances in which s 7(a) operates).

43. The analogy, so drawn, is not without some usefulness, but it suffers from the different language employed in the provisions under consideration in each authority and the circumstances in which the word “likely” was construed. The analysis ultimately suffers because insufficient attention was given to the actual words used in s 7(a) and the context in which the provision appeared.

44. ASC concerned, inter alia, the meaning of the words “likely to create” in s 998(1) of the Corporations Act 2001 (Cth), which contained the following proscription:

998(1) A person shall not create, or do anything that is intended or likely to create, a false or misleading appearance of active trading in any securities on a stock market or a false or misleading appearance with respect to the market for, or the price of, any securities.

45. Sackville J discussed the meaning of the word “likely” as discussed in the Tillmanns Butcheries (by Deane J) and found, when viewed in context, the word, when used in s 998(1) of the Corporations Act, meant “more probable than not”. This conclusion was substantially predicated upon the proscribed conduct in that matter resulting in a criminal offence which, his Honour found, tended against “likely” merely meaning a “real chance” (such that, if the section created an ambiguity it must be resolved in favour of the alleged contravener” (at 386)).

46. Apart from the differences in the language employed by the legislation considered in ASC and s 7(a) (as between “tending to reveal” and “likely to create”), ASC also fell short of offering any real support for the Intervenor’s contentions because the provisions of s 7(a) do not create an offence, the breach of which would attract penalties under s 16. Rather, the penalties attach to any non-publication order, the making of which is governed by s 7(a).

47. RJE concerned the meaning of the words “likely to commit” in s 11(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic) and thereby seems an inappropriate point of reference in the present context.

48. Tillmanns Butcheries concerned s 45D(1)(a) of the Trade Practices Act 1974 (Cth) and, in particular, the meaning of the words “likely to have the effect of causing substantial loss or damage to the business of the corporation”. The passage of Deane J’s judgment (at 346) was extracted in ASC at 395 and referred to the difference in meanings of the word “likely” depending upon its usage and context from “probability” to a “real not remote chance or possibility” and “prone” or with a propensity or liable.

49. Reference may also be made to the judgment of Bowen CJ where his Honour also discussed the meaning of the word “likely” as follows:

The word "likely" is one which has various shades of meaning. It may mean "probable" in the sense of "more probable than not" - "more than a fifty per cent chance". It may mean "material risk" as seen by a reasonable man "such as might happen". It may mean "some possibility" - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

…

The circumstances to which s. 45D may apply are so various that I hesitate to place a gloss on the section by preferring one meaning of "likely" rather than another for the determination of this particular case. It is unnecessary to do so, because I have formed the view that whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established.

50. As I have mentioned, there is an absence in the Intervenor’s submissions of any analysis of the actual words used in s 7(a). The word “tending” or “tends” in the expression “tending to reveal” in the ordinary course would give that expression a “wide ambit” (see Trade Practices Commission v TNT Management Pty Ltd; sub nom Trade Practices Commission v TNT Management Pty Ltd (No 3) (1981) 39 ALR 665 at 671 (per Bowen CJ)) or provide a width of meaning (see Griffin v Pantzer (2004) 137 FCR 209 at [187] (per Allsop J)). Depending on the context in which it is used, it may delineate a legislative intention to indicate a real possibility rather than the meaning of “more probable”: Murphy v Director of Public Prosecutions andAnother (1985) 7 FCR 55 at 61 (per Toohey J).

51. The meaning of those words will, however, be influenced by the surrounding words in s 7(a) and the surrounding provisions, most notably the provisions of s 6 (and the principles of open justice) and s 8.

52. It may be accepted, as discussed in Moseley No 1, that the principles of legality favour a construction of the Act which is consistent with the principles of open justice. However, s 7(a) operates, as earlier mentioned, in circumstances where a non-publication order may only be made upon satisfaction of one of the grounds in s 8(1). That consideration may suggest, consistent with its ordinary meaning, that the expression “tending to reveal” might be given a wide ambit so as to encompass the variety of factual circumstances that may arise in the establishment of the grounds under s 8(1) and, in this case, s 8(1)(c), which is protective of the safety of a person.

53. This analysis would suggest that a construction of the words “tending to reveal” as being a real possibility (of revealing an identity) may be preferable. The meaning of the expression “tending to reveal” would then be sufficiently wide to serve the purpose for which a non-publication order may be made under s 8(1) (in the case of s 8(1)(c)). When understood in the light of orders under s 7 of the Act only being available on the grounds permitted by the Act, this approach may be seen as being consistent with the approach to non-publication order in the common law, namely, that non-publication orders should do no more than is necessary to achieve the due administration of justice having regard to what is reasonably necessary (see Moseley No 1 at [22]).

COSTS

Submissions of the Parties

Submissions for AB

54. AB made the following written submissions in support of her application for costs:

[11] In Tonto Home Loans Australia Pty Ltd v Tavares [2012] NSWCA 129, the New South Wales Court of Appeal summarised the law with respect to Intervenors. The following propositions emerge:

(a) An unsuccessful Intervenor may be liable for costs if its intervention has substantially extended the hearing or put the successful party to unnecessary cost.

(b) An Intervenor cannot expect that the unsuccessful party to the litigation in which he has intruded should bear the extra burden of his costs, even if his intervention was well intentioned and proved to be of assistance to the court.

[12] This application involved no matter of general importance. The Intervenor did not seek leave to intervene on a matter of general application to any aspect of the public or of commerce. It intervened so that it could broadcast a story concerning AB and her conduct.

[13] Had the Plaintiff not approached the Intervenor and disclosed the matters which he disclosed, it may be that no application by AB would have been necessary. It was the disclosure by the Plaintiff, and the resistance by the Intervenor to the making of an order, that has led to this application extending over six Court days, at considerable cost to AB.

[14] Had the Intervenor not opposed the making of the order, final orders could have been made on the first occasion. Alternatively, interim orders could have been made and final orders made by consent.

[15] AB has been put to extra and unnecessary cost by reason of the Intervener's intervention. The Intervenor should pay AB's costs - costs incurred as a direct result of the Intervenor's position as a contradictor. In the alternative, the Intervenor should pay 85% of AB's costs (reflecting the augmentation of AB's costs by reason of the Intervenor's intervention).

55. In oral submissions, the following supplementary contentions were advanced:

1. The intervention was not undertaken in a public authority capacity but as a matter of “editorial importance”. The Intervenor’s role as a public broadcaster is irrelevant in those circumstances. The Act permitted the appearance of all media organisations. The Intervenor conducted its case as if it was any other media organisation intervening with respect to a “specific story” and not out of a public concern.

2. In the absence of the Intervenor, there might have been merely a half hour hearing as to an interim order in contrast to three days before Adams J and three days before the Court as presently constituted.

3. It was conceded that at some stage press interest may have required AB to seek non-publication or suppression orders which were “unopposed” and, in the result, AB proposed alternative orders that the Intervenor would pay 85% of AB’s costs.

4. There were not costs thrown away by the amendment to relief sought by AB on the first day of hearing. The issue was always fully encapsulated in the order sought in [2(2)] above. The amendment arose out of refinements sought from the Court and had no practical bearing on the proceedings. It was bringing the motion into line with the way the case was being argued.

5. The Intervenor should pay costs of the proceedings for interim relief because it appeared on the “first day” to oppose interim relief.

Submissions for the Intervenor

56. The Intervenor made the following written submissions in reply:

[4.2] Clearly enough, the Applicant therefore relies on the "general rule" that costs should follow the event. So much may be accepted. It may also be accepted that the Court has an unfettered discretion to make an order for costs under s.98 of the Civil Procedure Act 2005 (NSW).

[4.3] However, as carefully explained by Debelle J in City of Burnside v Attorney General (SA) [1994] SASC 5136; 63 SASR 65 at 67-68 [11], that general rule should be qualified in relation to Intervenors. As his Honour observed, even if an Intervenor is successful in its contentions, there is no general rule that it will be entitled to receive its costs. It would therefore be inequitable for an unsuccessful Intervenor to be liable for costs in like circumstances. Accordingly, his Honour considered that an Intervenor may only be liable for costs if the intervention:

"...has substantially extended the hearing or put the successful party to unnecessary cost. In such circumstances, the Intervenor might be liable to pay a portion of the successful party's costs, that portion being determined by the extent to which the hearing has been lengthened by the intervention. Such a rule is consistent with the principle that, generally speaking, an Intervenor must take the action as he finds it".

[4.4] The Applicant does not complain that the Intervenor has substantially extended the hearing or put her to unnecessary cost (nor can it) and, by reason of the above, this bespeaks that a costs order against the Intervenor would be inappropriate.

[4.5] However, even if such an application was appropriate, there are compelling reasons why the Intervenor should not pay the Applicant's costs:

[4.6] First, the Court Suppression and Non-Publication Orders Act 2010 (NSW) is a statute of significant public importance that often calls for the intervention of a contradictor. Such a contradictor, usually the media, will often have a perspective on an application for suppression/non-publication orders that is not as sharply perceived as others. Respectfully, it is therefore in the public interest, and the interests of the administration of justice in NSW, that Intervenors, such as the ABC, not be deterred from providing assistance to the Court in relation to future applications under the Act.

[4.7] Second, the ABC was justified in intervening in the circumstances of the proceedings. That is, it acted on information provided by the Plaintiff and, subsequently acted responsibly in approaching the Applicant for a comment on that information. The Applicant, shortly thereafter, applied for a suppression order to relevantly prevent the ABC from publishing its intended 7.30 programme. The ABC was entitled under s.9 of the Act to intervene and, having done so, it acted entirely properly.

[4.8] Third, following its proper intervention, the ABC made detailed submissions to the Court setting out the relevant law in relation to the necessity of the orders sought by the Applicant. Those submissions were accepted and adopted by the Court: see, for example, Reasons for Judgment at [18] to [28].

[4.9] Fourth, it should be noted that even if the ABC had not intervened in the proceedings, the Applicant would have to be put to expense in making the application in any event. In this regard, the suppression or non-publication orders of the kind sought by the Applicant are not self-executing.

[4.10] Fifth, and as foreshadowed above, the Applicant abandoned the more general form of suppression order on 27 February 2017. In those circumstances, the Applicant should not be entitled to recover costs of and occasioned by such an abandonment under UCPR 42A and s.98 Civil Procedure Act 2005 (NSW).

[4.11] Sixth, and as should be implicit in paragraph [123] to [125] of the Reasons for Judgment, a hearing in relation to the Applicant's Short Minutes of Order should not have been necessary. That is, the form of orders should only have been amended to "ensure coherence with the Act". However, the Applicant now seeks a more general form of order that is significantly different to the controversy that was argued and determined in the Reasons for Judgment. Such orders will invariably incur further, and unnecessary, cost.

[4.12] In the above circumstances, and also having regard to the overriding objective and the dictates of justice set out in ss.56-58 of the Civil Procedure Act 2005 (NSW), it should in any event be inequitable for the Intervenor to be responsible for the Applicant's costs

57. In support of the submission at [4.3], the Intervenor also placed reliance upon Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell (No 2) [2012] NSWCA 129 (“Tonto Home Loans”) at [7]-[19] (per Allsop P, with whom Bathurst CJ and Campbell JA agreed). As to [4.12], the Intervenor placed reliance upon Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24].

58. In oral submissions the Intervenor further contended:

1. There is a public interest in not deterring interventions by media organisations, that interest, is the preservation of open justice pursuant to s 6 of the Act.

2. If the Intervenor was successful, it would not be entitled to costs. In those circumstances, it is entirely inequitable for the Intervenor as a media organisation who has an entitlement to be heard under s 9 of the Act, to “face the consequence of costs(s)” (the Intervenor does not require leave to intervene as suggested by AB).

3. It was accepted that, on the authority of City of Burnside v Attorney General of South Australia (1994) 63 SASR 65; [1994] SASC 5136 (“City of Burnside”) at 67-68, the Intervenor may be required to pay costs if it extended the proceedings unnecessarily. However, it cannot be contended that the Intervenor prolonged the proceedings in any way. The Intervenor was entitled to appear under s 9 of the Act. When the matter was before Adams J there was initially no expert evidence and hence an adjournment was necessary for AB to produce the same. Even though the contention of the Intervenor was rejected, it would be inappropriate for the Intervenor to be liable for the entirety of the costs of the proceedings, particularly when the AB amended the orders sought on the day.

4. There is a distinction between the Intervenor and “Fairfax” and “Nationwide News” as to publishing because, pursuant to the Charter of the Intervenor (see s 6 of the Australian Broadcasting Corporation Act 1983 (Cth) (“the Charter”) (extracted below at [63]), there is an obligation to provide information on news matters to Australians. This matter falls squarely within those obligations “because this is a matter which deals with a plaintiff who is alleging sexual abuse in a school by a teacher and that teacher subsequently [became] a well-known individual in her own right”. There is also the involvement of the Catholic Church.

The Legislation

59. The powers of the Court as to costs are set out in s 98 of the Civil Procedure Act2005 (NSW) in the following terms:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

…

60. Part 42 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) sets out the rules with respect to costs. Rule 42.1 is extracted below:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

61. Part 6 Div 1 of the Civil Procedure Act is also relevant to the disposition of this matter and is extracted in full as follows:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(3A) (Repealed)

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person:

(a) provides financial assistance or other assistance to any party to the proceedings, and

(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

Note. Examples of persons who may have a relevant interest are insurers and persons who fund litigation.

(7) (Repealed)

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

59 Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

60 Proportionality of costs

In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.

62. Further, in terms of the standing of the Intervenor, s 9(2)(d) of the Act provides that “a news media organisation” is entitled to appear and be heard by the court on an application for a suppression order or non-publication order.

63. For completeness, the Charter is also extracted in full below:

6 Charter of the Corporation

(1) The functions of the Corporation are:

(a) to provide within Australia innovative and comprehensive broadcasting services of a high standard as part of the Australian broadcasting system consisting of national, commercial and community sectors and, without limiting the generality of the foregoing, to provide:

(i) broadcasting programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community; and

(ii) broadcasting programs of an educational nature;

(b) to transmit to countries outside Australia broadcasting programs of news, current affairs, entertainment and cultural enrichment that will:

(i) encourage awareness of Australia and an international understanding of Australian attitudes on world affairs; and

(ii) enable Australian citizens living or travelling outside Australia to obtain information about Australian affairs and Australian attitudes on world affairs; and

(ba) to provide digital media services; and

(c) to encourage and promote the musical, dramatic and other performing arts in Australia.

Note: See also section 31AA (Corporation or prescribed companies to be the only providers of Commonwealth‑funded international broadcasting services).

(2) In the provision by the Corporation of its broadcasting services within Australia:

(a) the Corporation shall take account of:

(i) the broadcasting services provided by the commercial and community sectors of the Australian broadcasting system;

(ii) the standards from time to time determined by the ACMA in respect of broadcasting services;

(iii) the responsibility of the Corporation as the provider of an independent national broadcasting service to provide a balance between broadcasting programs of wide appeal and specialized broadcasting programs;

(iv) the multicultural character of the Australian community; and

(v) in connection with the provision of broadcasting programs of an educational nature—the responsibilities of the States in relation to education; and

(b) the Corporation shall take all such measures, being measures consistent with the obligations of the Corporation under paragraph (a), as, in the opinion of the Board, will be conducive to the full development by the Corporation of suitable broadcasting programs.

(3) The functions of the Corporation under subsection (1) and the duties imposed on the Corporation under subsection (2) constitute the Charter of the Corporation.

(4) Nothing in this section shall be taken to impose on the Corporation a duty that is enforceable by proceedings in a court.

General Principles

Costs

64. Before turning to the question of costs in the context of the issues raised on the present application, I will address the general principles associated with costs orders.

65. The court’s primary task is to determine whether the facts of the case or specific costs provisions impact upon the court’s jurisdiction to make costs orders. Unless there are statutory provisions to the contrary, the court’s discretion to determine such issues is unfettered: Civil Procedure Act 2005 s 98(1) (extracted above at [59]).

66. The central and overriding principle in this regard is that of doing justice to the parties in each particular case. This involves a heavily contextual assessment that focuses upon the conduct of the litigation itself. A discretion exercised on grounds unconnected with the litigation, or on no grounds at all, is arbitrary or capricious rather than fair or just (see Peters v Peters (1907) 7 SR (NSW) 398 at 399 (per Street J); Cretazzo v Lombardi (1975) 13 SASR 4 at 11 (per Bray CJ); Scharer v Counting Instruments Ltd [1986] 1 WLR 615 at 621 (per Buckley LJ).

67. The discretion must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy”: Williams v Lewer [1974] 2 NSWLR 91 at 95.

68. This discretion may be exercised whenever the circumstances warrant, having regard to the scope and purpose of the s 98 of the Civil Procedure Act: Oshlack v Richmond River Council (1998) 193 CLR 72; Hamod v State of NSW [2011] NSWCA 375 at [813]. However, the discretion must be exercised on a principled basis (see Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 at [11]), and in accordance with the principles of proportionality: Civil Procedure Act s 60.

69. In Oshlack v Richmond River Council, McHugh J observed the discretion, whilst unfettered, is not to be applied without guidance or qualification (at [65]-[67]):

The discretion must be exercised judicially

[65] Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation. In this manner, the law has gradually developed principles to guide the proper exercise of the discretion and, in some cases, to highlight extraneous considerations which, if taken into account, will cause the exercise of the discretion to miscarry. Consistent with the aim of justice, the law could not have developed otherwise. As Mason CJ said in Latoudis it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity.

[66] By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. As Devlin J said in Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co (No 2), when setting aside an arbitrator’s costs award:

the arbitrator is not directing his mind to one of the most, if not the most, important of the elements which ought to affect his discretion, namely the result of the case. Prima facie, a successful party is entitled to his costs. To deprive him of his costs or to require him to pay a part of the costs of the other side is an exceptional measure.

The combined force of the sentiments recognised above by Mason CJ, regarding the need for consistency in order to avoid injustice, and by Devlin J, regarding the most significant factor affecting the costs discretion, provides the jurisprudential basis for the important principle commonly referred to as the “usual order as to costs”.

The usual order as to costs

[67] The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

70. Equally, the “general rule” (or “usual order as to costs”) does not amount to a fetter on the court’s discretion. The terms of r 42.1, “unless it appears to the court that some other order should be made”, clearly envisage that the court may, in its discretion, make a costs order other than one following the event.

71. The most common circumstance in which the general rule may be displaced is evidence of disentitling conduct on the part of the successful party: Oshlack v Richmond River Council at [40] and [69]; G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263. The disentitling conduct does not necessarily need to amount to misconduct; it may simply be any conduct “calculated to occasion unnecessary expense”: Lollis v Loulatzis (No 2) [2008] VSC 35 at [29]; Keddie v Foxall [1955] VLR 320 at 323–4.

72. In Commonwealth of Australia v Gretton [2008] NSWCA 117, Hodgson JA addressed the principles of fairness underlying the making of a costs order, which may at times warrant departure from the general rule (at [121]):

[121] In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach.

73. Further factors identified as relevant to informing judicial discretion were identified in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 at [97]-[98] (per Campbell JA) (see also, Oshlack v Richmond River Council at [69] (McHugh J); and Ritter v Godfrey [1920] 2 KB 47). They include, but are not limited to, the following:

1. whether the successful party effectively invited the litigation;

2. whether the successful party unnecessarily protracted the proceedings

3. whether the successful party succeeded on a point not argued before a lower court;

4. whether the successful party prosecuted the matter solely for the purpose of increasing the costs recoverable; and

5. whether the successful party had obtained relief which the unsuccessful party had already offered in settlement of the dispute.

74. The onus lies on the losing party to establish a basis for any departure from the general rule: Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10]. Only in an exceptional case would a successful party both be deprived of costs and also ordered to pay the opponent’s costs: Arian v Nguyen (2001) 33 MVR 37.

75. The fact that the proceedings involve some public interest aspect does not, of itself, necessarily warrant departure from the general rule that costs follow the event: Oshlack v Richmond River Council at [90] (McHugh J); Re Kerry (No 2) [2012] NSWCA 194 at [13], [15]; CSR Ltd v Eddy (2005) 226 CLR 1.

76. Where there is a divergence of authority on a particular issue, this may be a factor, but in Rinehart v Welker (No 3) [2012] NSWCA 228 the importance of the subject matter did not provide a basis for refusing costs to the successful party in private litigation (at [15]).

77. The Court should, however, have careful regard to the facts of the case: EKO Investments Pty Limited v Austruc Constructions Ltd [2009] NSWSC 371 at [18]–[23]; Knight v Clifton [1971] Ch 700 at 725.

78. Additionally, in a case where there are multiple issues litigated, the Court may, in the exercise of its discretion, order that a successful party have only part of its costs. It may be appropriate to order that a successful party be deprived of costs or a portion of the costs if the matters upon which that party is unsuccessful took up a significant part of the trial, either by way of evidence or argument: see Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24].

79. The appropriate starting point, nonetheless, remains the presumption under r 42.1, and the enquiry then becomes whether in the exercise of the court’s discretion, the presumption should be displaced, or whether some other order is to be preferred. In order to address the latter proposition, in the context of the present application, I now turn to the principles surrounding Intervenors and costs orders.

Intervention

80. An Intervenor is “[a] person who seeks to intervene as a party in proceedings to protect their interest where those interests are different from those of existing parties” (P E Nygh and P Butt (eds), Butterworths Australian Legal Dictionary (Butterworths, Sydney, 1997) at 629). In other words, an Intervenor is not compelled, but rather, voluntarily enters litigation.

81. The role of the Intervenor, as well as the level of intervention, will ultimately turn on the particular facts and circumstances of a case, both in terms of the interests of the relevant parties and the conduct of the litigation itself. An Intervenor has been described as both an “amicus curiae” and “a party in the proceedings”: Westpac v Gibbons (No 4) [2012] SASC 80 (at [10]); Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 (at 396); Attorney-General (Ontario) v Winner [1954] AC 541 (PC).

82. In Westpac v Gibbons (No 4) [2012] SASC 80, Lunn J provided an overview of “intervention” and the role of an “intervener” (at [10]):

[10] Intervention is an intermediate status between that of a party to an action and that of an amicus curiae. Permission to intervene does not give interveners any particular rights, but only allows them to be heard on such matters in the action where the court considers it may be assisted by them. What role the intervener will play in the action will depend upon the circumstances of the case and the discretion of the court. The status and roles of interveners will vary tremendously depending upon the circumstances of a particular case. Hence, any rulings about costs ordered to be payable to, or by, interveners cannot apply to interveners generally, but only to interveners in cases similar to those where the orders were made. The cases which have held that costs are not payable to, or by, interveners are those where interveners have only played a subsidiary role to the parties in the determination of the dispute.

83. In Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, Hutley JA made the following observation (at 396):

A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae.

84. Those observations are particularly applicable in circumstances such as the present when an intervention is available as of right and the contest was between a sole party and the Intervenor over a discrete issue.

85. Accepting that that an Intervenor may become the equivalent of a party to the proceedings with all the benefits and burdens of that status, as in this matter, it follows, in the absence of any express restriction on the orders for costs that may be made concerning the intervention, the unfettered costs discretion conferred by statute applies (see above at [65]-[79]). I will now turn to the authorities that elucidate the relevant principles of costs awards in the context of intervention.

86. In City of Burnside, Debelle J heard an application for costs, brought by the plaintiff, following successful appeal proceedings before the Supreme Court of South Australia, which left the question of costs payable to or by the Intervenor reserved for the further consideration of the trial judge. His Honour held that an unsuccessful Intervenor may be liable for costs under the general rule as to costs with some qualifications; namely, if such intervention had substantially extended the hearing or put the successful party to unnecessary cost. This conclusion was informed by a broad view and application of the general principles in the area of costs and intervention.

87. The question of liability was informed by the following factors (at 68):

In determining whether the intervener should be liable for costs, the Court should adopt a broad axe approach. If the hearing was slightly longer than it would have been but for the intervention, it might not be appropriate to order the intervener to pay costs. It will be a question of fact and degree in every case whether the intervener's participation has resulted in the trial being substantially longer than it would have been but for the intervention. In determining whether the intervener should be liable, it would be appropriate to have regard also to such factors as whether the interest which the intervener sought to protect was adequately protected by an existing party. Depending on the nature of the issues in the action, it might be a relevant factor that the intervener has assisted the parties and the Court in identifying or elucidating the issues. It is not unrealistic to suppose that, although the intervention has prolonged the trial, the intervener's participation has been of substantial assistance. In such a case, it might be inequitable to order the intervener to contribute to the costs of the successful party.

88. This assessment follows upon proceedings where the Intervenor had contributed to the contest in inter parte proceedings.

89. The qualifying factors identified by Debelle J, are not entirely dissimilar to those identified by the courts, generally, with respect to a departure from the general rule (see above at [73]). The individual considerations may be simply distilled as follows:

1. whether the Intervenor’s participation unduly lengthened the proceedings;

2. whether the Intervenor’s interest was already adequately protected by an existing party; and

3. whether the Intervenor assisted the parties and the Court in identifying or elucidating issues.

90. In City of Burnside, Debelle J provided an overview of the available authorities in the Probate and Admiralty jurisdictions, which, together with the general principles, provide the foundation for some of the above factors (his Honour noted an absence of decisions specific to an unsuccessful Intervenor within the common law jurisdiction). He observed (at 67) [references omitted]:

1. “In the Probate and Admiralty jurisdiction, the court had an unfettered discretion to order costs and, as a general rule, costs followed the event”.

2. “As a general rule, an intervener in Probate actions was not allowed separate costs even if successful… However, if the Intervener’s interest differed from that of other parties to the action he might recover his costs”.

3. “[I]f the intervener’s interest was the same as that of another party who had pleaded in the action, the intervener should adopt the pleadings of that party”.

4. “A successful intervener would be entitled to his costs only if his intervention was necessary to protect his rights… This is consistent with the principle, that generally speaking, an Intervener’s participation is limited to the protection of his own interest and he must take the cause as he finds it at the time of the intervention”.

5. “A successful Intervener is unlikely to recover his costs even if the intervention was well intentioned and proved to be of assistance to the court”.

91. In light of the above summary of authority, Debelle J concluded:

There appears to be no reason why as a matter of general principle an unsuccessful intervener should not be subject to the general rule that costs follow the event. However, it is not appropriate to apply that general rule without qualification. If a successful intervener is not entitled to his costs where his interests are adequately protected by an existing party to the action, it would be inequitable for an unsuccessful intervener to be liable to costs in like circumstances. However, an unsuccessful intervener might be liable for costs if his intervention has substantially extended the hearing or put the successful party to unnecessary cost. In such circumstances, the intervener might be liable to pay a portion of the successful party's costs, that portion being determined by the extent to which the hearing has been lengthened by the intervention. Such a rule is consistent with the principle that, generally speaking, an intervener must take the action as he finds it.

92. In application of the above principles to the particular circumstances, Debelle J consistently emphasised the need to adopt a “broad axe approach” or “broad view”. For example, with respect to extending the length of the proceedings, his Honour observed:

In my view the hearing was extended to that extent by the intervention. But for that intervention, the hearing would have concluded in two days. Further, although the interest which the Athletics Association sought to protect was not identical with those which the Attorney-General sought to protect, the submissions made by each were in large part very similar. I think, therefore, that the plaintiff is entitled to an order that it be compensated to the extent that the intervention prolonged the hearing. It is not appropriate to descend into minute detail for this purpose. Instead, a broad axe approach should be adopted, a view with which both parties concurred.

[Emphasis added.]

93. In Tonto Home Loans, the NSW Court of Appeal cited the above principles (City of Burnside at 67-68) that no order for costs would be made against the Intervenor, ASIC. The appellant had sought, inter alia, a variation of the primary judge’s order in favour of ASIC, namely, that ASIC would not pay the appellants’ costs of the appeal (the appellant had sought a proportionate costs order against ASIC). Contrary to the submissions of the Intervenor, the facts and circumstances in Tonto Home Loans may be distinguished from the present application. That point of distinction will be discussed later in this judgment in the discussion vis-à-vis the role of the Intervenor. For present purposes I will set out the central elements, distinct from the present application, of the judgment of Allsop P..

94. Allsop P placed emphasis upon the “significant importance” of the case, with respect to the “the operation of the retail home lending market and for the operation of the businesses of the appellants and the lenders standing behind them” and the relevance of ASIC’s assistance in that context, despite the intervention having an impact upon the duration of the proceedings proper. In particular I note the following observations of Allsop P (Tonto Home Loans at [10]-[15]):

[10] The appellants submitted that the intervenor failed on the unconscionability question. That was said to be "the event" which costs should follow.

[11] The appellants submitted that ASIC's intervention at trial and on appeal was both extensive and unnecessary, and so inappropriate, because the respondents would have run all points.

[12] I need not repeat what I have said above in order to reject the submission that ASIC's intervention was either inappropriate or in some fashion repetitive or oppressive. To a degree it added to the length of both the trial and the appeal. The case was, however, of significant importance for the operation of the retail home lending market and for the operation of the businesses of the appellants and the lenders standing behind them.

[13] Whilst ASIC failed in its arguments upon unconscionability, it did not limit its assistance to the Court to its participation generally in that regard. The operation of, and the place of the public interest in, the Contracts Review Act 1980 (NSW), s 9(1), the application of the principles of agency to the circumstances at hand and the construction of important Commonwealth legislation all were the subject of assistance. It is not appropriate to view the question of unconscionability as the "event" around which costs should turn.

[14] Without belabouring facts canvassed in the main judgment, the lending practices of these lenders and the behaviour of their commercial counterparty (Streetwise) were such as to attract the regulator to participate in the way it did: in my view, entirely justifiably. The lenders, through the conduct of their agent (the mortgage originators), bear much of the responsibility (amongst the parties to the litigation) for the long and costly legal battle, in which ASIC participated perfectly properly.

[15] Though there was inevitably a degree of extension of the time taken to run the trial and hear the appeal, given the primary facts, the importance of this kind of structure of lending to the market and ASIC's significant assistance in an efficient manner, I would not order it to pay any costs to the appellants for any such extension.

[Emphasis added.]

95. The broad approach identified in City of Burnside is analogous to the caution applied in determining costs orders against non-parties, another “exceptional” area of costs, where courts have expressly warned against creating closed categories or classes by which the costs discretion may be exercised against a non-party. Such an approach has been descried as “unhelpful” and “inconsistent with the exercise of a discretion founded in the interests of justice”: Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 (“Knight”) at 192. Such an approach, within the present circumstances, is also consistent with the general principles.

96. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42 (“Board of Bendigo”), the High Court of Australia dealt with a costs application on the papers; the appellant sought, inter alia, that the unsuccessful Intervenor pay 15% of the costs. The Intervenor relied upon two primary contentions: “(a) the proposition that his intervention did not increase the appellant’s costs to any material extent and (b) the proposition that there are no ‘special circumstances’ justifying a costs order against him” (at [10]).

97. Heydon J, in respect of the Intervenor’s contentions, observed (at [11]-[13]):

[11] Proposition (a) is not correct. The 15% figure proposed by the appellant is a reasonable estimate of the impact which the [Intervenor]’s intervention had on the costs the appellant incurred. The [Intervenor]’s written submissions were lengthy. His oral submissions consumed a not insignificant amount of time.

[12] As to proposition (b), the circumstances were exceptional. That is because the [Intervenor]’s stance before and during the oral hearing was not that of an intervener, but that of a partisan. For example, some of the [Intervenor]’s oral submissions were directed to factual material. This is hardly the province of an intervener. The respondents were represented by able and experienced counsel who could and did put their clients’ case as forcefully as possible. The arguments for the [Intervenor] did not go beyond the respondents’ case. They were works of supererogation. Would-be interveners who wish to behave like parties should not intervene, or should seek to be joined as parties if they satisfy the rules for joinder of parties, or should suffer the same fate as the losing parties in respect of costs if they back the losing party’s cause.

[13] However, though the [Intervenor] has indicated his general position in correspondence, the court’s orders on 7 September 2012 did not permit the [Intervenor] to file written submissions regarding costs. Though the [Intervenor] has requested the opportunity to file written submissions, it has not been afforded. For that reason, it would be unjust to order that the [Intervenor] pay the appellant’s costs. But it would also be unjust to order that the respondents pay only 85% of those costs. The consequence which flows from the conclusion that the [Intervenor] is not to pay any part of the appellant’s costs is not that the appellant should bear the burden of the [Intervenor]’s intervention, but that the respondents should do so. It was, after all, the respondents who took the forensic initiative by seeking to overturn, and overturning, an impeccable judgment by the trial judge, which it took an appeal in this court to restore.

98. His Honour also noted (at [14]):

[14] The ordinary practice of this court when intervention takes place is not to order that the loser pay the winner’s costs less those attributable to the intervention, but to order that the loser pay the whole of the winner’s costs.

99. Both decisions in Board of Bendigo and City of Burnside, it should be noted, were made at the completion of the proceedings proper and in the context of final costs orders. The preceding observation of Heydon J, accordingly, does not dispense with the need to apply the general costs principles in the light of any relevant qualifying factors within the particular circumstances of a case.

100. Further principles that may inform, but do not fetter, the determination presently before the Court are as follows:

1. There is no common practice that an Intervenor will receive its costs, even if its contentions are accepted or the outcome of the proceeding otherwise accords with the arguments advanced by the intervener, as the plaintiff is entitled to choose the person(s) whom he or she wishes to sue: see Arnold v Queensland (1987) 73 ALR 607 at 621 (per Wilcox J); Johnston v Cameron [2002] FCAFC 301 at [19] (per Branson J).

2. There is no rule of law that a costs order cannot be made against an amicus curiae (see Metlife Insurance Ltd v Visy Board Pty Ltd (Costs) [2008] NSWSC 111 at [4]).

3. A successful Intervenor can recover costs only if the intervention was necessary to protect an interest not common with the main parties: see Xat Ky v Australvic Property Management Pty Ltd (No 2) [2007] FCA 1785 at [22]-[23] (per Middleton J) and Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 at [34]-[38] (per Flick J): at [34]-[38]).

4. Where the Intervenor's interest is sufficiently alike to that of another party in the proceedings, the Court considers it unfair to burden the unsuccessful litigant with a dual costs burden where the two sets of costs are incurred to propound essentially the same successful contention: see Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (No 2) [2007] FCA 36 at [9] (per French J).

5. An unsuccessful Intervenor is unlikely to recover costs but is not as a general rule ordered to pay costs. The basis for this is that if a successful Intervenor is not entitled to costs where an existing party to the suit adequately protects its interests, it is inequitable for an unsuccessful Intervenor to be liable for costs in like circumstances: see City of Burnside at 67 (per Debelle J); Tonto Home Loans at [8].

Application of Principles

101. With those general principles in mind, I now turn to AB’s application for an order for costs against the Intervenor.

102. At the outset, the following circumstances, particular to the application, must be noted:

1. the application for costs occurred prior to the determination of the proceedings proper; and

2. neither the plaintiff nor the first defendant sought to be heard in relation to the dispute determined in Moseley No 1.

103. The two aforementioned factors are relevant to a contextualisation of the intervention, in particular, with respect to the role of the Intervenor in the proceedings and submissions regarding delay and assistance.

Role of the Intervenor

104. According to submissions by counsel for AB the motion was brought after disclosure of allegations by the plaintiff to the Intervenor. The orders sought by AB were opposed by the Intervenor from the outset. The contest was immediately characterised, by AB, as “a battle between the second defendant and the Intervenor”.

105. As mentioned, the Intervenor entered the proceedings pursuant to s 9(2)(d) of the Act. AB did not (and could not) dispute the Intervenor’s right to intervene.

106. It might be noted, on the first day of the final hearing, counsel for the Intervenor, Mr Lewis, sought to distinguish the participation of the Intervenor from the parties in the proceedings proper: “one must bear in mind that the ABC is not a party to these proceedings. This is a motion which is brought to injunct the ABC permanently in proceedings which it is not a party to” (I will return to the development of the AB’s application and the course of the proceedings in further detail below).

107. However, the motion concerned a discrete interlocutory application to be determined separately and prior to any final proceeding or any final order as to costs.

108. The interests pressed by the Intervenor concerned, inter alia, the right of a media organisation to broadcast a story and were sought pursuant to that Act. The Intervenor’s interest had no bearing upon the interests of either the plaintiff or the first defendant (Cf Tonto Home Loans at [8]; City of Burnside at 67; but see Xat Ky v Australvic Property Management Pty Ltd (No 2) at [22]-[23]).

109. Further, with respect to the issue of assistance to the Court, to which I will return to momentarily, any such assistance that may be identified, again, did not relate to the determination of the proceedings proper, and to that end the role of the Intervenor in these proceedings is, broadly speaking, more closely alighted to that of “a party” than an “amicus curiae”: Corporate Affairs Commission v Bradley at 396; Cf Westpac v Gibbons (No 4) at [10] and Board of Bendigo at [12]. With those preliminary remarks in mind I will turn to consider the conduct of the proceedings, the role and interest of the Intervenor and any disentitling conduct by AB.

Course of Proceedings

110. The hearing of the dispute occupied five days and may be separated into two primarily categories: “the interim hearing” and “the final hearing”. The interim hearing commenced in the Duty List and was heard across two days before Adams J. In written submissions AB referred to “3 days”, but upon consultation of the Court record, one of those days included a directions hearing (which remains relevant, but with respect to the case management of the proceedings). In between the two hearings, the case management of the dispute was overseen by Adams J before being returned into the Duty List. The final hearing was heard over three days, before the Court as presently constituted, with the third day concerning the determination of the final form of orders and costs. I now turn to the nature of the proceedings as unfolded before this Court.

111. The relevant aspects of proceedings(excluding any appearances before the Common Law Registrar) may be summarised as follows:

The interim hearing

1. Day 1: On 17 November 2016, the Court record reveals (in the absence of a transcript of proceedings) that, by notice of motion filed in Court, the applicant sought, inter alia, an order under s 8 of the Act (presumably a reference to s 7) to prohibit or restrict the disclosure of the pleadings and, in the alternative, any information which could identify AB and, in a third alternative, further particular matters. The matter was stood over to 21 November 2016 to permit the applicant to file any further evidence addressing the issues of imminent safety of DD, namely, a further affidavit of Ms Susan Gai McTegg (solicitor for AB). In the interim, his Honour ordered “until further order of the Court there is to be no publication of the fact or circumstances of the allegations made against AB or of her name in connection with those allegations. It appears from the later observations by Adams J that the Intervenor appeared and opposed the motions.

2. Day 2: On 21 November 2016, the hearing of the applicant’s motion continued and concluded with Adams J delivering judgment ex tempore. It may be noted that, at this stage, AB relied upon wider grounds than the single ground (under s 8(1)(c)) relied upon in support of final orders. His Honour made an interim non-publication order, pursuant to s 10, “prohibiting the publication of any material which is capable of identifying the cross-defendant, AB, in connection with the allegations the subject of these proceedings including, without limitation: (a) AB’s name or likeness; (b) the school the subject of the said allegations; (c) the name of any employer of AB, from time to time; and (d) the name of any organisation in which AB is involved”. His Honour, after making brief observations as to the issues of costs (extracted below), reserved costs.

3. As to costs, his Honour intimated that he was minded that each party pay its own costs. He provided the following observations:

…these are not matters to be decided by consent for the perfectly obvious reason that, although [the ABC] happen[s] to be the media organisation that turned up, these are orders that would effect the world… [i.e.] not limited to [the ABC]. So there is a public interest which would not permit orders like this to be made by consent. That is really what I am saying. So Mr Sibtain would have had to have done his work anyway. So whatever happened it is reasonable that he should pay his own costs. That was my reasoning and you lost your opposition although theoretically you would put, on one view Mr Sibtain’s costs in the circumstances. Anyway it would be in the public interest that there is an opponent and therefore you should only pay your own costs.

I don’t know what orders are usually made in these cases but there is one reasoning that underlay my suggestion. I am happy to reserve costs if the parties are happy with that.

Case management

1. On 29 November 2016, the matter returned before Adams J for directions, with respect to a timetable for evidence for the final hearing (“the timetable”), and any other interlocutory aspects that may arise. On this occasion, the Intervenor opposed aspects of the timetable proposed by the AB, namely, the resulting delay of final hearing of the application due to the duration sought to be allotted to the AB to collect medical evidence. His Honour observed, with respect to the submissions provided by the AB addressing delay, “[i]t doesn’t strike me as unreasonable”. In light of the need to collect evidence, and the uncertainty of its availability by the next return date, the matter was adjourned for “directions or final hearing” on 16 December 2016. His Honour made some refinements to his ex tempore judgment.

2. On 16 December 2016, the matter returned before Adams J for directions. The applicant filed an amended notice of motion in court, which introduced, inter alia, injunctive relief with respect to “any information obtained… from documents produced under subpoena or from the Amended Statement of Claim”. His Honour confirmed a program for the serving of evidence and submissions. On the same occasion, in light of the evidence received to date, the Intervenor made an application that the matter move to the defamation list. His Honour did not proceed to hear the Intervenor’s application. The matter was stood over into the Duty List for directions (owing to the unavailability of Adams J), with the orders of 21 November 2016 continuing. Costs, were again, reserved.

3. It appears that one of these dates for hearing constitutes the “third” day referred to by AB.

4. On 13 February, the proceedings were heard before Davies J in the Duty List. After hearing brief submissions, with respect to the defamation list and the possibility of further delay (owing to the present limited availability of the defamation list judge), his Honour concluded “the better course” is to approach the List Manager. Leave was granted for the parties to approach the List Manager for a hearing date “on the basis that the matter may take up to half a day to hear and because of its nature, it requires as much priority as it can be given”. His Honour amended the timetable fixed by Adams J, with the consent of the parties, for the filing of submissions and granted liberty to restore. The question of costs reserved.

The final hearing

1. Day 3: On 27 February 2017, the applicant’s amended notice of motion was fixed for final hearing. The applicant sought final orders, pursuant to s 7 of the Act or alternatively, injunctive relief based on a breach of “implied undertaking” (the Court ultimately found it unnecessary to resolve this question). On this first day of hearing of the amended motion, the applicant abandoned the suppression order sought on the motion. Leave was sought and granted to file a further amended notice of motion reflecting the terms of the orders sought as described in the hearing (this occurred on 7 March 2017). The majority of the hearing time was occupied by arguments as to admissibility of evidence. As to the issue of costs, the Intervenor sought costs in the cause, due to the amendment but did not oppose costs being reserved to the end of the proceedings. The matter was adjourned, part heard, with a date to be fixed upon application by the parties to the List Clerk. The Court ordered that the parties’ submissions be limited to one half day.

1. On 7 March 2017, the applicant filed a further amended notice of motion. The motion further refined the two limbs of alternative relief, namely, a broader non-publication order pursuant to s 7 of the Act and injunctive relief. The relevant amendments are extracted below:

2A. An order, until further order, pursuant to section 7 of [the Act] prohibiting the publication of any material which is capable of identifying the Second Defendant, AB in connection with the allegations the subject of these proceedings including, without limitation:

(a) the Second Defendant’s name or likeness;

(b) any school the subject of the said allegations;

(c) the name of any employer of [the] Second Defendant, from time to time; and/or

(d) the name of any organisation in which the Second Defendant is or at any time has been involved.

5. Further or alternatively, an order that the Australia Broadcasting Corporation (ABC) be restrained form publishing any allegations concerning the conduct of the Second Defendant in connection with persons other than the Plaintiff, including information concerning her past employment.

6. Further or alternatively, an order that the [ABC] be restrained from using in any manner (including by way of publication) any information obtained (either directly or indirectly) from the documents produced under subpoena or from the Amended Statement of Claim.

3. Day 4: On 16 May 2017, the final hearing continued, in which the parties’ positions were ventilated. Counsel for the applicant submitted that the further amended notice motion was filed in response to the Court’s observation that the applicant clarify the orders that are being sought. Leave was granted to move upon that motion. On this occasion the judgment was reserved.

4. On 11 July 2017, judgment was handed down in favour of the applicant: Moseley No 1. The Court directed counsel for AB to file and serve short minutes of order, together with written submissions, identifying any variation to the orders sought in the motion in accordance with the terms of the judgment. The Intervenor was directed to file and serve submissions in rely. Both parties were granted leave to apply for the matter to be listed for oral submissions. The interim suppression order continued until final orders are made by the Court.

5. On 25 June 2017, the applicant provided written submissions, together with draft orders which sought a wider form of relief than that originally contemplated by the Court in the above directions. The applicant requested an oral hearing with respect to the same. On 8 August 2017, the Intervenor provided reply submissions and also requested an oral hearing.

6. Day 5: On 28 August 2017, the matter was listed for a short hearing with respect to the form of the orders sought and costs. On this occasion, during the course of oral submissions, the applicant abandoned the general form of orders sought, and pressed the orders sought in 2(2) above.

(Each “Day” shall hereinafter be referred to by its allotted number in accordance with the above sequence).

Particular Considerations as to the Conduct of the Proceedings

Interim Proceedings and Case Management

112. The following observations may be made regarding the interim proceeding:

1. As AB conceded (in her alternative submission), consistently with Adams J’s observations, given the nature of the matter, the AB would have at some stage been likely to seek a non-publication or suppression order due to likely press interest which had been generated. Hence, it could not be said that the interim application was dependent upon the involvement of the Intervenor. Some consideration was identified by Adams J as a relevant factor with respect to costs in this matter.

2. The interim hearing extended across two days due, in part, to the opposition by the Intervenor but also because of the insufficiency of evidence brought by the applicant. The evidence produced on the second day of the interim hearing, 21 November 2016, was an affidavit affirmed by the solicitor for the applicant, Ms McTegg of the same date.

3. Further, as observed by Adams J, orders of this nature cannot be made by consent and, in any event, “it would be in the public interest that there is an opponent”.

4. The Intervenor appeared as of right. Its interest was, as I will later discuss, principally that of a media organisation covering “a story”. Intervenor was ultimately the unsuccessful party to the interim proceedings.

5. The observation of Adams J, whom heard the interim proceedings, was that costs should be borne by each party; that, in light of the abovementioned circumstances, it was appropriate that no order as to costs be made. This observation is not to be overshadowed by his Honour’s order to reserve costs (an order typically made in intervention proceedings).

6. It is difficult to assess the impact of the Intervenor’s application to have the matter heard in the defamation list. Whilst ultimately unsuccessful, it did not in and of itself result in undue delay. The application occurred in the course of a directions hearing prior to the fixture of final hearing dates. Further, it would be inappropriate to approach the development of proceedings in such minute detail, especially in circumstances in which AB, at the time of the Intervenor’s application, was not ready to proceed to final hearing.

7. The Intervenor was unsuccessful in resisting the application for interim orders. AB was granted leave to amend its notice of motion, with costs reserved. The Intervenor submitted that costs should be in the cause. Further, in those circumstances, the Intervenor submitted that the applicant should not be entitled to recover costs pursuant to UCPR r 42A and Civil Procedure Act s 98. It was also submitted, by the Intervenor, that this factor must be taken into consideration in attributing to the extension of the hearing, given an opposing party cannot address the issues without the exact reflection as to what the party is seeking: Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24]. It should be noted, that on Day 5, AB conceded that the first application was necessary to correct errors as well as refine the orders sought pursuant to interim orders made by Adams J.

The Final Hearing

1. AB further amended its applications by abandoning the suppression order. AB contended, that this amendment simply refined the orders sought and as ventilated on the first day of the final hearing. It served, it was submitted, as a means of clarification as opposed to the introduction of alternative or further relief.

2. The Intervenor contended that Day 5 of the proceedings would not have been required had the applicant complied with this Court’s directions on 11 July 2017, namely, the provision of draft orders that conform with the Court’s directions: Moseley No 1 at [124]. AB provided a more general form of order that was, as submitted by the Intervenor, significantly different to that which was contemplated by the Court in Moseley No 1. In my view, once again taking a broad approach to analysis, this contention is not without substance as the general form of order was not in conformity with the directions made by the Court in Moseley No 1 and made it more likely that the matter would not proceed by way of a determination after an oral hearing. However, this development must be balanced with the right afforded to each party to request an oral hearing to further ventilate any issue that may arise out of compliance with the directions of the Court and the Intervenor’s failure with respect to the three issues it pressed.

Interests of the Intervenor

113. Turning to the Act and the role of the Intervenor, counsel for the Intervenor contended: that it is in the public interest, and the interests of the administration of justice in NSW, that Intervenors, such as the present one, not be deterred from providing assistance to the Court in relation to future applications under the Act. In this way, the Intervenor contended for a broad view approach to the “interests” and “role” of the Intervenor in proceedings such as the present.

114. However, I accept the submission of AB, that the intervention was not undertaken in a public authority capacity but as a media organisation seeking to produce a “story”. Accordingly, whilst there are advantages in having, in matters such as the present, a contradictor and the Intervenor has a status as a public broadcaster, in the particular circumstances of this matter these factors carry much less weight because the Intervenor conducted its case essentially as if it was any other media organisation intervening with respect to a “specific story” (I have made some allowance for the Intervenor assuming the role as a contradictor). Further, the intervention cannot be characterised as seeking some broader public interest beyond broadcasting a story of potential intrigue and appeal owing to the contentious subject matter. The Intervenor appeared as of right to prosecute its opposition to the orders sought by AB outside of the contest in the principal proceedings in this context. In short, I do not consider the Intervenor’s contention that a costs order against an unsuccessful intervenor would deter the involvement of contradictors in the circumstances of this matter where the Intervenor has sought to advance essentially an interest as a media organisation to secure a story. None of this is to diminish the significance of the primary objective in s 6 of the Act, but it must be recalled that, with that issue at the front of mind of the Court, the Intervenor failed in its opposition to non-publication orders.

Assistance of the Intervenor

115. The Intervenor contended that following intervention, it provided detailed submissions to the Court setting out the relevant law in relation to the necessity of the orders sought by the Applicant, which were subsequently accepted and adopted by the Court: see, for example, Moseley No 1 at [18]-[28]. Whilst this assistance cannot to be decried, for the most part it does not rise above the level expected of an officer of the Court to that of an amicus curiae. The assistance was not relevant the proceedings proper and did not otherwise assist the Court in identifying or elucidating issues beyond the confines of the motion before the Court. That said, the assistance was of some real value in focusing the attention of relevant authorities and principles upon issue in the proceeding and should be given some weight, albeit limited.

Conclusion: Costs

116. The central and overriding principle in determining an application for costs is that of doing justice to the parties in the particular circumstances of the case. Thus, as was undertaken in the immediately preceding component of this judgment, a heavily contextual assessment was undertaken by focusing upon the conduct of the litigation itself.

117. The general rule expressed in r 42.1 does not fetter the discretion of the Court in that respect, provided it is recognised that the general rule is that costs will follow the event unless it appears to the Court that other orders should be made. No different rule exists in the case of an Intervenor although, as earlier mentioned, some qualifications may arise in that respect depending upon the circumstances of the case. What is important to bear in mind is that the status and role of Intervenors will vary tremendously depending upon the circumstances of the particular case.

118. In this matter, the role of the Intervenor was not akin to that discussed by Debelle J in City of Burnside. The Intervenor did not appear as an Intervenor in the primary contest between the parties and, therefore, did not appear as part of the final hearing of the matter. As mentioned, the Intervenor’s particular interest concerns the production of a story and its contentions, in that respect, were advanced in discrete proceedings concerning the motion. Its role in that respect was not, in this case, substantially distinguishable with other media organisations that had a right to appear under the Act.

119. It may be accepted that in many cases an Intervenor will be not entitled to costs if successful and, in consequence, equity will dictate that no order for costs would be made against an unsuccessful Intervenor. However, that rule is not universal, particularly where a successful Intervenor, intervenes to protect a particular interest not common to other parties. In that case, the reverse situation arises, namely, an unsuccessful Intervenor may suffer an order for costs.

120. Finally, one common circumstance in which a general rule may be displaced is evidence of disentitling conduct on the part of the successful party.

121. With those opening remarks in mind, I will revisit the conduct of the proceedings noting it is appropriate to adopt a broad approach.

122. Turning to the interim proceedings which consisted two principal days and some procedural hearings following the interim determination by Adams J, I agree with the observations of Adams J that it would be appropriate, if considered alone, each party to pay their own costs. The nature of the application and surrounding circumstances would have rendered necessary the application for suppression and non-publication orders by AB, irrespective of the position of the Intervenor. AB needed to establish a proper basis for the making of orders, irrespective of the existence of a contradictor. Whilst AB was successful, the duration of the hearing essentially extended beyond the first day (in which AB would have been required to attend in any event) due to the insufficiency of evidence produced by the applicant on the first day. The state of the proceedings up to the point of the final hearing are of a similar character.

123. The proceedings on 29 November 2016 were still affected by AB’s readiness to proceed to final hearing. On 16 December 2016, AB amended the motion. The Intervenor was unsuccessful in its application for a transition to the defamation list but that did not seem to have significantly affected the course of the proceedings.

124. The next stage of the proceedings, the first two days of the final hearing.

125. There is an element of the first day of this hearing in which it may be concluded that the Intervenor unnecessarily extended the length of the hearing due to the extensive objections taken given that most objections were ultimately reduced to a submission in favour of a s 136 limitation and the determination of the substantive relief sought by AB turned largely upon the evidence of Dr Nielssen. However, it is unnecessary to reach a conclusion in that respect because, in my view, the nature of the Intervenor’s role in the proceedings was such that it should be treated as akin to an unsuccessful party for those days and, in the broad, costs would follow in favour of AB. Some allowance, in that respect, needs to be given to the Intervenor in consequence of the amendment brought by AB and the assistance provided by the Intervenor, although it may, in the circumstances, only be moderate.

126. The final stage of the proceedings was the additional day resulting in this judgment. The evaluation of costs in this respect is not without its difficulties. Some allowance needs to be made of an disentitling kind in consequence of AB seeking an order that was wider than that contemplated by the Court thereby increasing the likelihood of a further day of oral hearing being required. However, the Court did reserve various questions requiring adjudication in Moseley No 1 and contemplated that an oral hearing may be required in those circumstances. The significant counterbalancing consideration was the lack of success of the Intervenor in this final stage. Of the three issues raised by the Intervenor, two were abandoned and the Intervenor was unsuccessful in relation to the schools issue. As to the question of costs of this final stage, given the determination I will make below, this is effectively a neutral consideration. In my view, the preponderance of costs for the final day should fall in favour of AB.

127. The balancing of all of those considerations results, in my view, in a conclusion that a costs order should be made in favour of AB but the order should be proportional such that AB shall only receive a proportion of its costs.

128. The proper weighing of the aforementioned considerations, when taken in their totality, will result in an order in which the Intervenor shall pay 50 percent of the costs of AB on a party-party basis.

DIRECTIONS

129. As this decision represents the finalisation of the further amended notice of motion, it is appropriate that short minutes of order be brought in reflecting this judgment. Those directions will be made cognisant of the date upon which this judgment is delivered.

130. The Court directs that AB forward to the Associate of the Court as presently constituted in Chambers short minutes of order reflecting this judgment on or before 10am, 8 January 2018 together with a note indicating whether or not the Intervenor objects to those orders. In the event that there is no dispute, the Court will deal with the orders administratively in Chambers. In the event that there is a dispute as to orders, the Intervenor shall propose alternative orders by 15 January 2018. In the event of such a dispute, the Court will deal with the orders by a determination made in Chambers. There is liberty to apply by 4pm, 8 January 2018 in the event that any variation to these directions is sought by either party.

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Decision last updated: 20 December 2017