O'Neill v Australian Broadcasting Corporation

[2005] TASSC 125

[2005] TASSC 125

CITATION:         O'Neill v Australian Broadcasting Corporation & Ors [2005] TASSC 125

PARTIES:  O'NEILL, James Ryan
  v
  AUSTRALIAN BROADCASTING CORPORATION
  ROAR FILMS PTY LTD
  DAVIE, Gordon

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  135/2005
DELIVERED ON:  20 December 2005
DELIVERED AT:  Hobart
HEARING DATE:  9 December 2005
JUDGMENT OF:  Tennent J

CATCHWORDS:

Procedure - Costs – Departing from the general rule – Other cases – Indulgence of court - Right of long-term prisoner to institute civil proceedings – Successful application for leave retrospectively - Conduct of parties.

Prisoners (Removal of Civil Disabilities) Act1991 (Tas), s4.
Jones v Curling (1884) 13 QBD 262; Donald Campbell & Co Ltd v Pollak [1927] AC 732; Dibeek Holdings Pty Ltd v Notaras & Anor (1998) 143 FLR 132; Smith v Coleman A38/1996, referred to.
Aust Dig Procedure [598]

REPRESENTATION:

Counsel:
           Plaintiff:  J E Green
           First Defendant:  No appearance
           Second & Third Defendants:                   G L Sealy
Solicitors:
           Plaintiff:  Hobart Community Legal Service
           First Defendant:  No appearance
           Second & Third Defendants:                   Hunt & Hunt

Judgment  Number:  [2005] TASSC 125
Number of paragraphs:  25

Serial No 125/2005
File No 135/2005

JAMES RYAN O'NEILL v AUSTRALIAN BROADCASTING CORPORATION, ROAR FILMS PTY LTD and GORDON DAVIE

REASONS FOR JUDGMENT  TENNENT J

20 December 2005

1. This is an application for costs by the plaintiff in respect of an application made by him pursuant to the Prisoners (Removal of Civil Disabilities) Act 1991 ("the Act").

1. The plaintiff commenced proceedings for defamation against three defendants in April 2005. The Act, s4(2), provided that the plaintiff "may not sue except by leave of the court before which it is intended to bring the proceedings".  The Act, s4(3), provided that the court "shall not give leave" unless it was satisfied the proceedings were not an abuse of process and there was a prima facie ground for the proceedings. The plaintiff commenced proceedings without leave under the Act. The proceedings were commenced somewhat hurriedly, the filing of the writ being immediately followed by an application for an injunction. At the time there was no statement of claim and no defences.

1. The injunctive proceedings were dealt with.  There followed a statement of claim and a defence from the first defendant.  An appeal from the injunctive order also followed. 

1. The application for leave under the Act was made on 2 June 2005. The first defendant had not pleaded the lack of leave in its defence. On 8 June 2005 a defence on behalf of the second and third defendants was filed in which the lack of leave under the Act was pleaded as a bar.

1. The application for leave was heard on 14 and 20 June.  Counsel for the first defendant did not seek to be heard.  The second and third defendants actively opposed the application and raised the issue that the proceedings begun by the plaintiff were a nullity because leave had not been obtained before they were commenced.  At the hearing, argument was addressed almost entirely to that issue with almost none being addressed to the merit of the application for leave itself.

1. The Court ultimately decided in favour of the plaintiff and he now seeks his costs.  He has been met with a cross-application by the second and third defendants for their costs of the application for leave.

1. Both counsel are agreed that the Court has an unfettered discretion insofar as costs are concerned, subject to it acting in accordance with generally established principles.

1. Counsel for the plaintiff referred to Jones v Curling (1884) 13 QBD 262 and Donald Campbell & Co Ltd v Pollak [1927] AC 732. As to the first, he argued, by reference to the words of Bowen LJ appearing at 272 which he quoted, that costs should follow the event. As to the second, that was referred to in support of the general proposition that the court had an unfettered discretion.

1. Counsel for the plaintiff submitted that the defendants had chosen to argue an issue and had been unsuccessful.  He further submitted that the plaintiff had not been out of time and had not been seeking the indulgence of the Court.  He had made his application and been wholly successful.

1. I raised with counsel for the plaintiff the possibility of costs being either reserved to be determined by the trial judge or there being costs in the cause.  He submitted neither was appropriate having regard to the matters already referred to.

1. Counsel for the defendants submitted that, apart from very general principles referred to, neither of the cases referred to by counsel for the plaintiff was on point.  He pointed out that the decision in Jones v Curling (supra) related to a specific English rule relating to costs following a jury verdict.  The rule provided that unless good cause existed, a judge, following a jury verdict, had no power to order costs would not follow the event.  In the case of Campbell v Pollak (supra) the court was dealing with the issue of whether the House of Lords could entertain an appeal on the question of costs only.  Counsel argued neither case was particularly helpful.

1. Counsel for the defendants submitted that the appropriate order for costs was one which required the plaintiff to pay the defendants' costs of and incidental to the application for leave or, in the alternative, that the plaintiff pay those costs in any event.

1. Counsel for the defendants referred to Dibeek Holdings Pty Ltd v Notaras & Anor (1998) 143 FLR 132. While this case dealt with an application to set aside a judgment by default, Higgins J, at 140 - 141, set out a useful summary of the principles to be applied in cases of costs on interlocutory applications. He said:

   "Interlocutory applications vary in their nature and purpose. Some merely seek directions as to the future conduct of the proceedings. Some seek to take advantage of or excuse a procedural default. Others seek to ascertain whether there is a substantive claim or defence which is, at least, seriously arguable.

   In general, a party successfully making a motion will be entitled to costs only on the basis that they are that party's costs in the cause. Conversely, a party failing in such a motion is not entitled to costs but the opposing party will be entitled to costs on the basis that they are that party's costs in the cause. If the motion is not opposed or is in the nature of the seeking of directions the costs thereof will usually be costs in the cause generally - see Mentors Ltd v Evans [1912] 3 KB 174, 179 per Farwell, LJ.

   In all cases, costs are discretionary. General rules can be no more than a guide.

   However, the following may be considered to be further guidelines,

   ·    If a party makes an unsuccessful motion that should not have been made at all, the successful party should have costs in any event - see Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21.

   ·    If a party makes a successful motion based on an irregularity or default committed by the opposing party, that party should have costs in any event - see Harrison's Timber v Haster (1974) 3 ACTR 1.

   ·    Where a party seeks an indulgence or relief from the consequences of its own default, the opposing party should have costs in any event. See eg O32, r13.

   In each case, however, the result will depend on the interests of justice in all the circumstances. The factors referred to in Quirk v Bawden (1992) 112 ACTR 1, relevant to making an order for indemnity costs, are also relevant to the making of costs orders generally. The reasonableness of the conduct of the respective parties in the circumstances is always of importance."

1. Counsel for the defendants submitted in the present case that what the plaintiff was seeking was an indulgence. In expanding upon this submission, counsel said that the Act, s4, plainly contemplated that a plaintiff would ordinarily seek leave before commencing proceedings. He said the Act was silent as to how an application should be made and it might be supposed such an application could be made ex parte.  He went on to say that, had the plaintiff made his application ex parte before he commenced his action, the defendants would not have been involved and would not have incurred any costs.  Because the plaintiff did not adopt that course of action, he had to seek the indulgence of the Court to grant leave retrospectively and by doing so drew the defendants into the argument.

1. Counsel for the plaintiff submitted that, because of the finding of the Court that the failure to seek leave did not render proceedings commenced without it a nullity, the application for leave was one that was unnecessary.  It only became so because of the position taken by the defendants, that is, by their raising the issue in their defence.  It was only because the issue was raised by that defence that it needed to be argued.  The first point which should be made is that the defence raising the issue was filed after the application for leave was made.

1. Secondly, however, this submission raises the rhetorical question, why even have the Act if counsel's interpretation is correct?

1. The failure to obtain leave prior to the commencement of proceedings, given the terms of the Act, clearly created an irregularity in the proceedings which needed to be corrected. The plaintiff had the obligation to do that irrespective of the defence.

1. Counsel for the defendants further submitted that the defendants were entitled to oppose the application and did not act unreasonably in so doing. They raised an issue of interpretation of the Act, which, had they been successful, could have resulted in the end of the proceedings against them. I accept that the interpretation propounded by the defendants' counsel was arguable though ultimately unsuccessful. Further, the evidence adduced by the plaintiff in support of its application was sparse. Counsel for the defendants, perhaps it could be said, quite properly in all the circumstances, did not argue to any degree the merits of the leave application itself.

Conclusions

1. I accept that an application for leave under the Act, s4, would usually be made before substantive proceedings are commenced and made ex parte.  Prior to the present matter being argued, there appeared to be only one previous case relating to an application for leave.  This was that of Smith v Coleman A38/1996, a decision of Cox CJ.  That application was made ex parte and before substantive proceedings were commenced.  Counsel for the plaintiff referred to that case in argument at the hearing of the application for leave.

1. It follows that, had the plaintiff taken that course in these proceedings, the defendants would not have been involved and would not have incurred costs.  The defendants became involved only because of an error of the plaintiff. 

1. The plaintiff therefore did come before the Court seeking an indulgence, namely the grant of leave retrospectively. The success of that application could not, on any version of events, have been a foregone conclusion given the silence of the Act about the issue.

1. The defendants could have said we will not oppose your application, and left it to the Court to decide. That was, in effect, what the first defendant did. However, the defendants now before me saw an opportunity to potentially end the proceedings against them depending on how the Court interpreted the Act. They took that opportunity. It was presented to them wholly because of the plaintiff's failure to act before proceedings were commenced.

1. I am satisfied that the defendants have not acted unreasonably in opposing the leave application as they did.  They potentially had a lot to gain were they successful and the basis of their opposition was arguable.  I am also satisfied that the plaintiff, in applying for leave retrospectively, was seeking an indulgence and one which arose out of his own default.

Orders

1. The application of the plaintiff for costs will be dismissed.

1. In respect of the application by the second and third defendants for their costs of the application for leave, the order will be that the plaintiff pay the costs of the defendants of and incidental to the application for leave filed 2 June 2005 and that such costs be costs in the cause in any event.