O'Shane v Harbour Radio Pty Limited
[2014] NSWSC 1947
•19 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: O’Shane v Harbour Radio Pty Limited [2014] NSWSC 1947 Hearing dates: 19 December 2014 Date of orders: 19 December 2014 Decision date: 19 December 2014 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings referred to mediation
Catchwords: PRACTICE AND PROCEDURE – proceedings settled in principle after hearing of interlocutory application but before publication of reserved judgment – parties seeking publication of judgment in any event so as to assist in the resolution of a claim for costs by a third party – difficulty of determining issue raised where relevant considerations skewed by fact of settlement – referral to mediation including third party Legislation Cited: Civil Procedure Act 2005 (NSW), s 26 Category: Procedural and other rulings Parties: Patricia O’Shane (plaintiff)
Harbour Radio Pty Ltd (first defendant)
Alan Jones (second defendant)
Chief Executive, Judicial Commission of New South Wales (interested party)Representation: Counsel:
Solicitors:
S Jeliba (plaintiff)
M Richardson (defendant)
J Clarke SC (interested party)
McLachlan Thorpe Partners (plaintiff)
Banki Haddock Fiora (defendant)
Crown Solicitor's Office (NSW) (interested party)
File Number(s): 2011/250818 Publication restriction: None
Judgment
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HER HONOUR: These are proceedings for defamation commenced by a Magistrate, Ms Pat O'Shane, against Harbour Radio Pty Limited.
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The action potentially entailed the litigation of issues concerning the plaintiff's conduct as a magistrate. In aid of its defences to the action, the defendant issued a subpoena to the Judicial Commission of New South Wales seeking documents over which the Commission claims public interest immunity.
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After hearing argument in the Judicial Commission's application to have the subpoena set aside, or else the confidentiality of the documents protected, the Court was informed that, as between the plaintiff and the defendant, the proceedings had settled "in principle". The Court was nonetheless asked to proceed to publish its judgment on the Judicial Commission's application as the Judicial Commission's claim for costs remained a potential impediment to the completion of the settlement agreement as between the plaintiff and the defendant.
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Upon reflection, I came to the view that there was considerable difficulty in acceding to that request. First, a question of power may arise as to whether the Court can determine a matter where the matter is no longer alive by reason of the settlement. The parties' initial response to that suggestion was to say that the matter had only settled "in principle". However, without knowing precisely what has occurred in the exchanges leading up to at least a settlement in principle, it is impossible for me to determine that issue.
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More pertinently, the fact that the proceedings have settled in principle creates a considerable complexity in determining the application itself, since the task for the Court is to undertake a balancing exercise as between the public interest in maintaining the confidentiality of the documents in question and the public interest in their being made available in aid of the issues raised in the litigation. If the litigation is not to proceed, the latter public interest evaporates, which in turn skews the balancing exercise.
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The purpose of seeking the judgment is to know the costs to which the Judicial Commission ought properly be entitled. But any judgment in fact published would not serve that purpose, since it would say what the Judicial Commission ought to be entitled to now, not what it ought to have been entitled to had the proceedings not settled.
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In the circumstances, I re-listed the proceedings and have this morning heard from the parties as to what should happen next. Mr Clarke, who appears for the Judicial Commission, has informed me that there are four categories of costs sought by the Judicial Commission. They are, first, the costs of an abandoned subpoena issued on 27 March 2012. The Judicial Commission already has an order for payment of those costs and I think it follows that they need not concern me. Secondly, the costs of an earlier motion determined by Beech-Jones J. His Honour intimated that, as to the determination of that notice of motion, each party (that is the defendant and the Judicial Commission) should bear its own costs. However, his Honour did not proceed to make that order in case it was affected by the determination of the motion heard by me. Thirdly, the costs of the compliance with the second subpoena and fourthly, the legal costs of the motion heard by me.
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In all the circumstances, I consider the appropriate course is to direct the parties pursuant to s 26 of the Civil Procedure Act 2005 (NSW) to participate in a mediation of the Judicial Commission's costs. The solicitor for Ms O'Shane has helpfully indicated that Ms O'Shane would be prepared to participate in the mediation, although it does not directly concern her, since its determination may involve her at some level.
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Mr Clarke, who appears for the Judicial Commission, has asked the Court to make a direction in anticipation of any mediation requiring the parties to set out their position rather than waiting until the first five minutes of the mediation. I think that is appropriate. I do also think it would be helpful if the Judicial Commission quantified the sum claimed under each of the four heads outlined by Mr Clarke.
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I make the following orders and directions:
Pursuant to s 26 of the Civil Procedure Act, I refer the proceedings to mediation, including the proceedings instituted by the Judicial Commission in its Notice of Motion to the intent that the three parties to the mediation will be the plaintiff, the defendant and the Judicial Commission.
I direct the Judicial Commission to quantify the amount it actually claims under each of the four heads identified in these reasons, on the understanding that the quantification should both specify the actual amount of costs it is claimed have been incurred and the amount the Judicial Commission would accept having regard to the matters I have raised this morning.
I direct the parties to exchange, either on a without prejudice basis or in open correspondence as they see fit, a statement of their position in respect of the resolution of this issue in advance of the mediation.
I stand the proceedings over to 13 March 2015.
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Decision last updated: 12 March 2015
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