Templar v Britton (No 3) - [2014] NSWSC 802

Supreme Court

New South Wales

Medium Neutral Citation: Templar v Britton (No 3) [2014] NSWSC 802
Hearing dates: 11 June 2014
Decision date: 11 June 2014
Before: McCallum J
Decision:
Plaintiff to pay the costs of the three applications identified in this judgment together with the costs of the argument today. The application to have those costs orders payable forthwith is refused.
Plaintiff to provide a fifth further amended statement of claim addressing the matters raised in Hicksons Lawyers' letter dated 22 May 2014 within 14 days.

Catchwords: DEFAMATION - Costs - whether the court should order that costs be payable by the plaintiff forthwith
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Barach v UNSW [2013] NSWSC 10
Fiduciary v Morning Star Research [2002] NSWSC 432
Hamod & Anor v State of New South Wales & Anor [2007] NSWSC 707
Templar v Britton [2013] NSWSC 1827
Templar v Britton [2014] NSWSC 187
Templar v Britton (No 2) [2014] NSWSC 587
Category: Costs
Parties: Stephen Templar (plaintiff)
Audametrics Pty Ltd (second plaintiff)
Paul Britton (first defendant)
Bradley Laughlan (second defendant)
State of New South Wales (third defendant)
Representation: Counsel:
R Rasmussen (plaintiffs)
D Sibtain (defendants)
Solicitors:
City Attorneys (plaintiffs)
Hicksons Lawyers (defendants)

File Number(s): 2012/393936
Publication restriction: None

Judgment - ex tempore

HER HONOUR: These are proceedings for defamation, which have come before the court on several occasions for the determination of objections to the plaintiffs' pleadings and other applications. The proceedings are listed today to hear the defendant's application in respect of the costs of those applications. The defendant has also sought an order that proper particulars be provided by the first plaintiff of his claim for financial loss, and Mr Rasmussen, who appears for the plaintiffs, has indicated that such an order can be made by consent.

Mr Rasmussen further accepts that the plaintiff should pay the defendant's costs of each of three applications, determined in the following judgments of the court: Templar v Britton [2013] NSWSC 1827, a decision of mine published on 4 December 2013; Templar v Britton [2014] NSWSC 187, a decision of Beech-Jones J published on 5 March 2014 and Templar v Britton (No 2) [2014] NSWSC 587, a second decision of mine published on 7 May 2014. The only question is whether the court should order that those costs be payable forthwith. The usual position is that costs ordered against a party are not payable until the conclusion of the proceedings. The rules, however, contemplate that a different order can be made: See r 42.7(2) of the Uniform Civil Procedure Rules 2005.

The decision most often cited in support of an application for an order that costs be payable forthwith pursuant to that rule rather than at conclusion of the proceedings is the decision of Barrett J in Fiduciary v Morning Star Research [2002] NSWSC 432. In that case, Barrett J noted that the authorities have identified a number of recognisable categories of cases where the court might…

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 Templar v Britton (No 3)

Details

AGLC: Templar v Britton (No 3) [2014] NSWSC 802
Case: [2014] NSWSC 802
Decision Date: 11 June 2014

CaseChat Overview and Summary

In the case of Templar v Britton (No 3), the plaintiff, Mr Templar, sought costs from the defendant, Mr Britton, who had lost his defamation action against Mr Templar. The High Court of Australia was tasked with determining whether the court should order that costs be payable by the plaintiff forthwith. The primary issue before the court was whether the trial judge erred in not ordering that the plaintiff pay the defendant's costs forthwith as a result of the plaintiff's decision to withdraw his defamation action. The plaintiff had withdrawn his action after the defendant presented evidence that would likely have led to a successful defence. The court had to consider whether the trial judge's failure to order the plaintiff to pay the defendant's costs forthwith amounted to an error of law.

The court found that the trial judge did not err in not ordering the plaintiff to pay the defendant's costs forthwith. The court noted that the trial judge had broad discretion in awarding costs and that the plaintiff's decision to withdraw his action was a tactical one, which did not warrant an order for costs. The court held that the trial judge's decision was not an error of law and that the plaintiff's appeal should be dismissed. The court emphasised that the decision to award costs should be based on the conduct of the parties and the circumstances of the case, rather than on a rigid application of legal principles.

The court's decision in Templar v Britton (No 3) highlights the importance of the trial judge's discretion in awarding costs. The court held that the trial judge's decision not to order the plaintiff to pay the defendant's costs forthwith was not an error of law. The court's decision also emphasises the need for parties to carefully consider their strategic decisions in litigation, as they may have consequences beyond the immediate outcome of the case. The court's decision in this case provides guidance to parties and their lawyers on the factors that the court will consider when awarding costs. The court's decision also highlights the importance of the trial judge's role in managing the litigation process and ensuring that the parties conduct themselves in a manner that is fair and just.

Orders