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Seven Network (Operations) Ltd v Dowling (No 3)

Seven Network (Operations) Ltd v Dowling (No 3)

Case [2021] NSWSC 1371 27 October 2021

Costs

Contempt of Court

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Seven Network (Operations) Ltd v Dowling (No 3) [2021] NSWSC 1371
Hearing dates: On the papers, last submissions 8 October 2021
Date of orders: 27 October 2021
Decision date: 27 October 2021
Jurisdiction: Equity
Before: Rees J
Decision:
Specified gross sum costs order made.

Catchwords:
COSTS – contempt motion – contemnor ordered to pay indemnity costs – plaintiffs seek specified gross sum – principles at [4]-[7], [12]-[16] – defendant likely unwilling or unable to pay costs – defendant contributed to costs incurred by his conduct – appropriate to make order in sum sought.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Legal Profession Uniform Law (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.5

Cases Cited:
Baychek v Baychek [2010] NSWSC 987
Bitek Pty Ltd v iConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288
Bouras v Grandelis (2005) 65 NSWLR 214; [2005] NSWCA 463
Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kostov v Zhang (No 2) [2016] NSWCA 279
Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890
Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726
Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106
Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788
Sparnon v Apand Pty Ltd [1998] FCA 164

Category: Costs
Parties: Seven Network (Operations) Ltd (First Plaintiff)
Seven West Media Ltd (Second Plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel:
Mr K Smark SC (Plaintiffs)
Self-represented (Defendant)
Solicitors:
Addisons (Plaintiffs)

File Number(s): 2017/116771

Judgment

HER HONOUR: On 21 June 2021, I found the defendant guilty of contempt: Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726. On 13 August 2021, I ordered that the defendant pay the plaintiffs’ costs of the contempt motion on an indemnity basis, payable forthwith, and gave directions in respect of any application for gross sum costs.
The plaintiffs seek a specified gross sum instead of assessed costs, under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). In support of their application, the plaintiffs rely on an affidavit of their solicitor, Richard Keegan, and written submissions. The defendant relied on his written submissions.
This judgment assumes familiarity with my earlier judgments in this matter being – in addition to the judgment mentioned at the outset – Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890 and Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106.

Whether appropriate to make lump sum costs order

Section 98(4)(c) of the Civil Procedure Act provides:

Courts powers as to costs
In particular, at any time before costs are referred for assessment,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Seven Network (Operations) Ltd v Dowling (No 3)

Details

AGLC: Seven Network (Operations) Ltd v Dowling (No 3) [2021] NSWSC 1371
Case: [2021] NSWSC 1371
Decision Date: 27 October 2021

CaseChat Overview and Summary

Seven Network (Operations) Limited sought an order for indemnity costs against Dowling after proceedings were brought for contempt of court. The Federal Court was tasked with determining the appropriate amount of costs to be awarded to Seven Network in light of the contempt proceedings. The central legal issues involved the principles guiding the assessment of indemnity costs, particularly when the contemnor appears unable or unwilling to pay. The court was also required to consider whether the defendant's conduct contributed significantly to the costs incurred by the plaintiff, thereby justifying the imposition of a specified gross sum.

The court referred to previous cases to outline the principles governing the award of indemnity costs. It noted that the defendant's financial situation, or lack thereof, was a crucial factor in determining the appropriate amount. The court found that the defendant's conduct indeed contributed to the costs incurred by Seven Network, which supported the imposition of a specified gross sum. Given the circumstances, the court deemed it appropriate to grant the sum sought by Seven Network, ensuring that the defendant bore the full financial responsibility for the costs arising from his contemptuous behaviour. The reasoning underscored the importance of holding contemnors accountable for the full extent of their actions.

The Federal Court concluded that the specified gross sum sought by Seven Network was justified and ordered the defendant to pay the amount. This decision reflected the court's commitment to ensuring that parties who engage in contemptuous conduct are held to account for the full costs of their actions, particularly when they appear unable or unwilling to meet those financial obligations. This ruling serves as a reminder of the court's power to impose substantial costs in cases of contempt, ensuring that such behaviour is adequately deterred.

Orders