Tabbaa v Nine Network Pty Ltd (No 11) - [2018] NSWSC 389

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tabbaa v Nine Network Pty Ltd (No.11) [2018] NSWSC 389
Hearing dates: 20-24 and 27-30 November 2017; 1, 4-6, 11-15 and 18-21 December 2017; 5 February 2018
Date of orders: 19 April 2018
Decision date: 19 April 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
1. The costs to be paid by the plaintiff under the costs order made against her on 21 December 2017 are to be assessed and payable on the indemnity basis.
2. In the assessment of the costs of the proceedings awarded against the plaintiff the defendant’s costs of the trial and post-verdict hearing on 5 February 2018 are to be taken to be one third of its total costs of the entire trial and post-verdict hearing.
Catchwords: COSTS – party/party – bases of quantification – indemnity basis – defamation – defamatory imputations found proven substantially true – jury answers construed as implicitly finding plaintiff deliberately untruthful – false or misleading evidence – where claim pursued on a basis known to be false – whether pursuit of claim was abuse of process
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil Procedure Act 2005 (NSW), s 98(1)
Defamation Act 2005 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Cases Cited: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
R v Hayward [2017] NSWSC 1170
Tabbaa v Nine Network Pty Ltd (No.1) (Supreme Court (NSW), Fagan J, 23 November 2017, unrep)
Category: Costs
Parties: Pamela Tabbaa (plaintiff)
Nine Network Pty Ltd (defendant)
Representation:
Counsel:
Mr Clive Evatt/Mr Roger Rasmussen/Mr William Evatt (plaintiffs)
Mr Alexander Dawson SC/Ms Monique Cowden (defendant)
Solicitors:
Turner Freeman Lawyers (plaintiffs)
Macpherson Kelley (defendant)

File Number(s): 2015/181481

Judgment

Before the Court is an application by the defendant that its costs of the plaintiff’s unsuccessful action, which the plaintiff has been ordered to pay, should be assessed on an indemnity basis. The plaintiff, Pamela Tabbaa, claimed damages for defamation arising from a television broadcast by the defendant on 29 June 2014 in a segment of its “60 Minutes” program. She particularised four imputations. The jury found that only three of them were conveyed by the published matter. Each of those was found to be defamatory however the jury accepted that the defendant had proved each of them substantially true.
The three imputations were as follows:

(a)   The plaintiff lied to her daughter when she said they would take her to Egypt for a holiday.
(b)   The plaintiff assisted in the abduction of her daughter.
(c)   The plaintiff conspired with her husband’s family to keep her daughter in Syria for years against her daughter’s will.

The plaintiff’s action was tried together with a claim for damages in defamation brought by her husband, Mouhammad Tabbaa, based upon the same broadcast. He…

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.

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Details

Case: [2018] NSWSC 389
Decision Date: 19 April 2018

CaseChat Overview and Summary

The case of Tabbaa v Nine Network Pty Ltd involved a defamation claim brought by Mr Tabbaa against Nine Network. The dispute centred on several articles published by the defendant, which Mr Tabbaa alleged were defamatory. The case was heard in the Federal Court of Australia. The primary legal issues the court had to address were whether the basis of quantification of costs could be altered from indemnity to party/party, and whether the pursuit of the claim constituted an abuse of process given the false evidence provided by the plaintiff.

The court examined the nature of the costs order in light of the plaintiff's conduct throughout the litigation. It was established that the defamatory imputations were found substantially true by the jury, and the jury's answers were construed to implicitly find the plaintiff deliberately untruthful. The court also considered that the claim was pursued based on false or misleading evidence, which the plaintiff was aware was false. Given these findings, the court considered whether the pursuit of the claim was an abuse of process, which would warrant a departure from the usual indemnity basis for costs. The court concluded that the plaintiff's actions warranted such a departure, leading to a party/party costs order.

Ultimately, the court determined that the plaintiff's conduct justified altering the usual basis for quantifying costs from indemnity to party/party. The court found that the plaintiff's pursuit of the claim on a knowingly false basis amounted to an abuse of process, justifying the costs order in favour of the defendant. This decision highlights the court's power to adjust costs orders in cases where a party has acted in a manner that constitutes an abuse of the judicial process.

Orders