Ritson v Gay & Lesbian Community Publishing Ltd
[2012] NSWSC 586
•05 June 2012
Supreme Court
New South Wales
Medium Neutral Citation: Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 586 Hearing dates: On papers Decision date: 05 June 2012 Jurisdiction: Common Law Before: BEECH-JONES J Decision: (1) The Third and Fourth Defendants' costs of the Plaintiff's notice of motion filed 14 February 2012 be payable forthwith.
Catchwords: COSTS: - costs payable forthwith - complete success of Third and Fourth Defendants on discrete and substantial part of proceedings. Legislation Cited: Uniform Civil Procedure Rules 2005, r 42.7 Cases Cited: Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1
Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483Category: Costs Parties: Brendan Paul Ritson (Plaintiff)
Gay and Lesbian Community Publishing Ltd (First Defendant)
Gary Burns (Second Defendant)
Stephen Pickells (Third Defendant)
Sydney Educational Broadcasting Ltd (Fourth Defendant)Representation: Mr R D Glasson (Plaintiff)
Mr J Hmelnitsky (Third and Fourth Defendants)
Mitchell Lawyers (Plaintiff)
Middletons (Third and Fourth Defendants)
File Number(s): 2011/417650
Judgment
On 18 May 2012 I published a judgment which, amongst other matters, refused the plaintiff's application for an extension of time to commence defamation proceedings against the third and fourth defendants to these proceedings (Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483). I ordered that the plaintiff pay their costs of the motion. As a result of my orders, all causes of action in defamation pleaded against the third and fourth defendants were struck out. All that remains against the third and fourth defendants is a cause of action for breach of an alleged "obligation of confidentiality arising at common law and/or an equitable obligation of confidentiality" (Ritson at [3]).
At the time I published my reasons and pronounced orders the third and fourth defendants made an application for the costs I ordered in their favour to be payable forthwith. The plaintiff indicated that he was not in a position to argue the matter immediately. I made directions for the prompt filing of brief submissions and the parties indicated that they were content for me to deal with the matter on the papers.
Having considered the submissions I propose to make the order sought.
Under r 42.7 of the Uniform Civil Procedure Rules, the costs of an interlocutory application are not payable until the conclusion of the proceedings unless the Court otherwise orders. The principal reason why it is appropriate to otherwise order is that the result of the motion represents complete success for the third and fourth defendants on a discrete (and substantial) part of the proceedings between them and the plaintiff, namely the causes of action in defamation (see Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1 at [11] (per Barrett J)). The outcome of the motion was that certain causes of action in defamation against the first and second defendants survived. The third and fourth defendants have no interest in those matters and they should not have to await the outcome of those matters before receiving the costs they have expended in defending defamation proceedings
Further absent such an order, it is likely that the costs will not be payable for a significant period (Fiduciary at [16]). The litigation of the defamation counts against the first and second defendants as well as the cause of action I have referred to above at [1] may take a significant period of time. The plaintiff submits that, in the absence of defences having been filed, I should not speculate about the likely time the proceedings will take, or whether they will involve numerous interlocutory applications. All applications of this kind involve some speculation as to the likely progress of the proceedings. Absent the proceedings settling, the likelihood of which I am not in a position to assess, a conclusion that the proceedings might resolve quickly would represent a triumph of hope over experience.
The plaintiff also contends that the litigation of the remaining cause of action against the third and fourth defendants, being the breach of confidentiality claim, will involve much of the same factual material and evidence as would have been produced if leave had been granted to pursue the proceedings in defamation. I am not convinced that this is so. The breach of confidentiality appears to relate to a narrower category of information than the alleged defamation. The issues that arise on that case are qualitatively different to those that arise in a defamation case.
Finally, the plaintiff contends that to require him to pay costs forthwith would be unduly harsh and would "frustrate his ability to efficiently prosecute his claim". Whether or not this is so depends upon the resources available to him, a matter of which I am not aware. I accept that an order that the costs be payable forthwith has the potential to operate in that way. However, I consider the greater unfairness would be occasioned by making the third and fourth defendants wait for their costs. Their role in the proceedings is greatly diminished by their success on the motion. What remains is proceedings that are likely to continue for a considerable period with their only playing a minor role.
For the sake of completeness I note that the third and fourth defendants' costs of the plaintiff's notice of motion will include the costs of this application.
orders
The orders of the Court are:
(1) The Third and Fourth Defendants' costs of the Plaintiff's notice of motion filed 14 February 2012 be payable forthwith.
Decision last updated: 05 June 2012
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