Supreme Court
New South Wales
Medium Neutral Citation: Mundine v Brown (No 7) [2011] NSWSC 170 Hearing dates: 11 February 2011 Decision date: 18 March 2011 Before: Harrison J Decision: 1. Order the first and third defendants to pay the plaintiff's costs of the proceedings.
2. Order the first defendant to pay the costs referred to in order (1) on the ordinary basis.
3. Order the third defendant to pay the costs referred to in order (1) on an indemnity basis.
4. Order the plaintiff to pay the second defendant's costs of the proceedings.
5. Order the plaintiff to pay the costs referred to in order (4) on the ordinary basis.
Catchwords: COSTS - defamation - apportionment of costs - Defamation Act 2005 s 40(2) - indemnity costs - where plaintiff succeeds on one only of a number of imputations - whether costs should be apportioned to reflect time taken dealing with issues where plaintiff unsuccessful - whether plaintiff entitled to indemnity costs - whether interests of justice required otherwise where defendants unable to refer to what occurred during mediation - where defendants could have made offers not embargoed by Civil Procedure Act 2005 s 30(4) - defendants to pay plaintiff's costs on indemnity basis Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Defamation Act 2005
Evidence Act 1995Cases Cited: Ahmadi v Fairfax Media Publications Pty Ltd (No 2) [2010] NSWSC 1191
Azzi & Ors v Volvo Car Australia Pty Ltd (Costs) [2007] NSWSC 375; (2007) 71 NSWLR 140
Channel Seven Sydney Pty Ltd v Mahommed (No 2) [2011] NSWCA 6
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Forsyth v Sinclair (No 2) [2010] VSCA 195
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Mundine v Brown (No 4) [2010] NSWSC 516
Mundine v Brown (No 6) [2010] NSWSC 1285
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roads & Traffic Authority v McGregor (No 2) [2005] NSWCA 453
Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128
Sydney Ferries v Morton (No 2) [2010] NSWCA 238
Turkmani v Visvalingam (No 2) [2009] NSWCA 279
Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328Category: Consequential orders Parties: Lana Mundine (Plaintiff)
Avery Brown (First Defendant)
APN News and Media Limited (Second Defendant)
Daily Examiner Pty Ltd (Third Defendant)Representation: Counsel:
T Molomby SC with R K M Rasmussen (Plaintiff)
P M Sibtain (First Defendant)
A T S Dawson (Second and Third Defendants)
Solicitors:
Slater & Gordon (Plaintiff)
Holding Redlich (First Defendant)
Banki Haddock Fiora (Second and Third Defendants)
File Number(s): 2009/297431
Judgment
HIS HONOUR: On 5 November 2010 I published my reasons for judgment in the…
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Details
- Case
- [2011] NSWSC 170
- Decision Date
CaseChat Overview and Summary
The case of Mundine v Brown (No 7) involved a defamation claim brought by Ms Mundine against the publishers of an article in The Daily Examiner. The article was alleged to have defamed Ms Mundine in her role as a mental health worker for the Aboriginal community in the Clarence Valley. Ms Mundine sought to establish that the article conveyed six defamatory imputations about her professional conduct. Ultimately, she was only successful in establishing one of these imputations, but the case was pursued on the basis of all six. The defendants argued that given this outcome, costs should not be awarded on an indemnity basis but rather apportioned based on the issues on which Ms Mundine was successful and unsuccessful.
The legal issues before the court included whether costs should be apportioned to reflect the time taken dealing with issues on which the plaintiff was unsuccessful, whether the plaintiff was entitled to indemnity costs, and whether the interests of justice required otherwise given the circumstances of the case. The court considered the principle that costs are awarded as compensation to the successful party and that the court should take a practical, rather than highly technical, approach to the issue of costs. The court also considered the discretion afforded to it under UCPR 42.1 to make an order as to costs that appears to the court to be just.
The court found that despite Ms Mundine's partial success, she was entitled to indemnity costs. The court reasoned that the defendants were able to make offers that were not embargoed by s 30(4) of the Civil Procedure Act 2005 and that the interests of justice required the plaintiff to receive full indemnity costs. The court rejected the argument for apportionment of costs, finding that the time taken to deal with issues on which Ms Mundine was unsuccessful was not a sufficient reason to deny her indemnity costs. The court ordered the defendants to pay Ms Mundine's costs on an indemnity basis.
The legal issues before the court included whether costs should be apportioned to reflect the time taken dealing with issues on which the plaintiff was unsuccessful, whether the plaintiff was entitled to indemnity costs, and whether the interests of justice required otherwise given the circumstances of the case. The court considered the principle that costs are awarded as compensation to the successful party and that the court should take a practical, rather than highly technical, approach to the issue of costs. The court also considered the discretion afforded to it under UCPR 42.1 to make an order as to costs that appears to the court to be just.
The court found that despite Ms Mundine's partial success, she was entitled to indemnity costs. The court reasoned that the defendants were able to make offers that were not embargoed by s 30(4) of the Civil Procedure Act 2005 and that the interests of justice required the plaintiff to receive full indemnity costs. The court rejected the argument for apportionment of costs, finding that the time taken to deal with issues on which Ms Mundine was unsuccessful was not a sufficient reason to deny her indemnity costs. The court ordered the defendants to pay Ms Mundine's costs on an indemnity basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Section 131 of the Evidence Act 1995 provides in part as follows: Finally, s 40 of the Defamation Act 2005 is as follows: Ms Mundine alleged that an article that was published in The Daily Examiner on 18 August 2008 defamed her. She is and was at the time of the offending publication a mental health worker employed by the Aboriginal Medical Service in Grafton. The paper circulated in the Clarence Valley, a geographical area that includes Grafton and surrounding districts. Ms Mundine provided services to the Aboriginal community in that area. The article complained of suggested that she fell short of her professional obligations as a mental health worker for the Aboriginal community in a number of respects. The defamatory imputations for which Ms Mundine contended were as follows: Of these, Ms Mundine only succeeded in establishing that the third imputation was made out. However, the case was conducted throughout upon the basis that she was seeking to establish all of the imputations. The first and third defendants submitted in these circumstances that "some other [costs] order should be made" in the way contemplated by UCPR 42.1. I was referred to Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72 at 97-98. These defendants submitted that costs are awarded as compensation to the successful party and that the Court is required to take a practical, rather than a highly technical, approach to the issue: Ahmadi v Fairfax Media Publications Pty Ltd (No 2)[2010] NSWSC 1191. In particular, my attention was directed to the helpful summary of the authorities assembled in Ahmadiby Rothman J at [8]. That summary included a reference to Waters v P C Henderson (Australia)Pty Ltd[1994] NSWCA 338; (1994) 254 ALR 328. The first and third defendants therefore submitted that in the present case, the issues upon which Ms Mundine succeeded and those upon which these defendants succeeded are clearly identifiable and that this identification should inform the question of where the burden of the costs of the litigation should fall. They submitted that to do otherwise would cause hardship to the first and third defendants because they succeeded on what they characterised as "issues that occupied the bulk of the time taken in [the] proceedings". They submitted that Ms Mundine should accordingly bear the expense of litigating those discrete issues upon which she failed. An apportionment of that order involves an exercise of discretion depending on matters of impression and evaluation without recourse to mathematical precision: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd[1993] FCA 259; (1993) 26 IPR 261. The first and third defendants contended in the present case that so much of the hearing as involved the jury's consideration of the imputations was clearly severable from the rest of the trial as it was determined separately. In those circumstances, there was no reason why these defendants ought not to have the costs of the argument before the jury on the question of the imputations: they succeeded on all but one of the six imputations litigated. The jury found that only two of the meanings were conveyed to an ordinary reasonable reader and that only one of them was defamatory of Ms Mundine. The jury retired to consider questions concerning identification and defamatory meaning and returned with answers to those issues on day eleven of the proceedings. The first and third defendants submitted that most of the first two weeks of the trial was concerned with the question of imputations.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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