Toben v Nationwide News Pty Ltd; Toben v Mathieson (No 3)

[2015] NSWSC 1862

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Toben v Nationwide News Pty Ltd; Toben v Mathieson (No 3) [2015] NSWSC 1862
Hearing dates:	3 December 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff to pay the newspaper defendants’ costs of the notice of motion determined in the primary judgment as agreed or assessed on an indemnity basis; plaintiff otherwise to pay those defendants’ costs of the proceedings as agreed or assessed on the ordinary basis.  Plaintiff to pay Senator Milne's costs as agreed or assessed on the ordinary basis. Any application by Senator Milne for a different order to be made by submission in writing within seven days, failing which that will be the order entered
Catchwords:	COSTS – indemnity costs – where proceedings stayed for abuse of process
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 42.5
Cases Cited:	Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Toben v Nationwide News; Toben v Mathieson [2015] NSWSC 1784 Toben v Matheison; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 Toben v Milne [2014] NSWCA 200
Category:	Costs
Parties:	2013/200157 Fredrick Toben (plaintiff) Nationwide News Pty Ltd (defendant)   2013/200128 Fredrick Toben (plaintiff) Clive Matheson (first defendant) Christian Kerr (second defendant) Senator Christine Milne (third defendant)
Representation:	Counsel: R Rasmussen (plaintiff) P Afshar (defendant in 2013/200157; first and second defendants in 2013/200128)   Solicitors: Carters Law Firm (plaintiff – notice of ceasing to act filed after decision reserved) Ashurst (defendant in 2013/200157; first and second defendants in 2013/200128) Baker & McKenzie (third defendant in 2013/200128)
File Number(s):	2013/2001282013/200157
Publication restriction:	None

Judgment – Ex Tempore

1. HER HONOUR: Earlier this week, I made an order staying these proceedings on the ground that I was satisfied they were an abuse of process: see Toben v Nationwide News; Toben v Mathieson [2015] NSWSC 1784.

2. The proceedings were re-listed today to hear the parties as to costs. The application I determined earlier in the week was brought only by the parties to whom I referred in the judgment as the "newspaper defendants". There is another defendant in the proceedings, Senator Christine Milne. The solicitor on the record for Senator Milne was notified of today's listing but has not appeared, perhaps due to a misapprehension that the listing related only to the notice of motion rather than the entire proceedings. In any event, it will be necessary to deal with Senator Milne's costs separately.

3. The newspaper defendants today seek an order that Dr Toben pay their costs of the proceedings and that those costs be assessed on an indemnity basis. Dr Toben consents to an order that he pay their costs but opposes the order for assessment on an indemnity basis.

4. The application for indemnity costs is based on my findings and particularly the conclusion at [105] of the judgment, as follows.

I have concluded that the proceedings are an abuse of the court’s process and should be stayed. The defendants have established, to my satisfaction, that Dr Toben seeks by these proceedings to manipulate the process of the court to create a forum in which to assert the very views by the attribution with which he claims to have been defamed. Those are the very views his expression of which is otherwise prohibited by the orders of Branson J. That is a cynical misuse of the process of the court which must be stopped.

5. Mr Afshar, who argued the present application for the newspaper defendants, relied on the decision of the High Court in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72. He submitted that the finding of abuse of process warranted a special order, as allowed under r 42.5 of the Uniform Civil Procedure Rules 2005 (NSW).

6. Mr Rasmussen, who appears for Dr Toben, drew my attention in particular to [44] of the joint judgment in Oshlack where Gaudron and Gummow JJ said:

It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.

7. Mr Rasmussen also relied on the separate judgment of McHugh J at [65] to [69] where his Honour noted that the discretion to order payment of costs on an indemnity basis is "not unqualified and is one which must, as with any judicial discretion, be exercised judicially". Mr Rasmussen submitted that my findings did not reveal any relevant delinquency or "misconduct relating to the litigation" in the sense discussed by McHugh J at [69] of the judgment. He noted that, as observed by me in the primary judgment, the application was determined in the context that Dr Toben was taken to have a prima facie case.

8. In my view, the findings made in the primary judgment at [105] (set out above) do warrant the making of an order that the defendants be compensated for their costs of the proceedings on an indemnity basis rather than on the usual basis.

9. There is, however, one consideration which causes me to pause before making such an order in respect of the defendants' costs of the whole of the proceedings and that is the timing of the present application. That was an issue relied upon by Dr Toben in resisting the defendants' motion, considered in the primary judgment at [15] to [23].

10. At [22], I held it was not unreasonable for the defendants to await the resolution of separate arguments which concerned only Dr Toben and Senator Milne before taking the step of moving the Court to have the proceedings permanently stayed. It does not follow, however, that the stay application could not have been brought earlier. In my view, it could.

11. During the period before the stay application was brought, Dr Toben was unsuccessful in an application for leave to amend the statement of claim: see Toben v Matheison; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530. The newspaper defendants did not participate in that argument. I ordered that Dr Toben pay Senator Milne's costs of the application. The judgment was appealed by Dr Toben. The Court of Appeal dismissed the appeal but granted Dr Toben leave to replead one imputation. The Court ordered that each party bear his and her own costs of the appeal: Toben v Milne [2014] NSWCA 200.

12. The point is that Dr Toben has incurred costs, and been ordered to pay costs of another party, during the period before the newspaper defendants brought the present application. Conversely, however, as observed by Mr Afshar, if the proceedings constituted an abuse of process, that was the position from the outset.

13. The application accordingly raises a difficult question as to how most fairly to address those competing arguments. The issue must ultimately be determined according to my impression as to what order will do justice between the parties and best serve the dictates of justice.

14. I have concluded the appropriate order is that Dr Toben pay the newspaper defendants’ costs of the notice of motion determined in the primary judgment published earlier this week, such costs to be as agreed or assessed on an indemnity basis and that Dr Toben otherwise pay the costs of those defendants of the proceedings as agreed or assessed on the ordinary basis.

15. As already indicated it will be necessary to deal with the position of Senator Milne separately. As already indicated, Dr Toben consents to an order to pay the Senator’s costs as agreed or assessed on the ordinary basis. If Senator Milne wishes to make any further application she may do so by submission in writing within seven days, failing which that will be the order entered.

16. I grant leave to Senator Milne to make any application as to costs by written submission within seven days. The plaintiff has leave to reply within a further seven days thereafter.

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Amendments

08 December 2015 - change to coversheet

Decision last updated: 08 December 2015