YZ v Amazon (No 6)

[2015] NSWSC 1951

Supreme Court

New South Wales

Medium Neutral Citation:	YZ v Amazon (No 6) [2015] NSWSC 1951
Hearing dates:	11 December 2015
Date of orders:	11 December 2015
Decision date:	11 December 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	In respect of the matters determined in YZ v Amazon (No 3), plaintiff to pay three-quarters of the costs of the first, third, fourth and sixth defendants. In respect of the argument determined in YZ v Amazon (No 4), plaintiff to pay the first, third, fourth and sixth defendants’ costs.
Catchwords:	COSTS – ordinary rule that costs follow the event – where issues determined involved a measure of complexity – where plaintiff unrepresented – where plaintiff propounded multiple pleadings in respect of which the defendants incurred costs
Cases Cited:	YZ v Amazon (No 3) [2015] NSWSC 1130 YZ v Amazon (No 4) [2015] NSWSC 1346
Category:	Costs
Parties:	YZ (Plaintiff) Amazon (1st defendant) Smashwords Inc (2nd defendant) OP (3rd defendant) QRS (4th defendant) WX (6th defendant)
Representation:	Counsel: Plaintiff appeared in person S Chrysanthou (first defendant) No appearance for the second defendant R Potter (third, fourth and sixth defendants)   Solicitors: Plaintiff self-represented HWL Ebsworth Lawyers (first defendant) Dwyer Bruce Legal (third, fourth and sixth defendants)
File Number(s):	2013/178073
Publication restriction:	Note: Some of the parties in these proceedings are the subject of pseudonym orders.

Judgment – ex tempore

1. HER HONOUR: These proceedings are before the Court today for the second listing. Happily, the parties have agreed as to the orders to be made in accordance with practice note SC CL 4 and those orders have been made.

2. There is also before the Court a reserved question as to the costs of the argument determined in two earlier judgments in the proceedings, being YZ v Amazon (No 3) [2015] NSWSC 1130 and YZ v Amazon (No 4) [2015] NSWSC 1346.

3. The first, third, fourth and sixth defendants seek their costs of the arguments determined in those judgments. In YZ v Amazon (No 3), I gave rulings as to the plaintiff's imputations. The complexity of the issues determined is recorded in the judgment. Subject to one qualification to which I will come, the defendants plainly enjoyed a measure of success in that judgment and it would, in my view, be within the Court's discretion to apply the ordinary rule that costs follow the event and order the plaintiff to pay the defendants’ costs.

4. The plaintiff, who represents herself, put careful submissions both in a written document and orally this morning. Those submissions focused primarily on various explanations for the extended delays and reformulations in bringing the form of the statement of claim into acceptable order. In particular, she focused on the fact that some of the pleadings or proposed amended pleadings that were served by her were versions upon which she did not wish to rely; the implication being that it was unreasonable of the defendants to react to them or to incur any legal costs in respect of them. Those were matters which (as recorded in my earlier judgment) warranted careful consideration of the Court in terms of granting indulgences well beyond what would ordinarily be allowed in defamation proceedings. They do not, however, warrant depriving the defendants of their entitlement to be compensated for the costs incurred by them in the circumstances recorded in the judgment.

5. The qualification is that, in my assessment, the defendants raised a number of objections which, although formally allowed, reflected a punctiliously high standard which might have been approached differently having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW).

6. It is difficult to apportion those objections other than at a broad impressionistic level, but Mr Potter did not oppose my suggestion that a fair order would be for the plaintiff to pay three-quarters of the defendants’ costs of that round of the argument. That is the order I propose.

7. As to YZ v Amazon (No 4), as recorded in the judgment, the plaintiff on that occasion sought a stay of my earlier orders and further time to bring the pleading into good order.

8. As with my ruling in respect of YZ v Amazon (No 3), my assessment of the submissions on that issue is that, although those were considerations properly taken into account in deciding whether to grant the indulgence sought, they do not warrant depriving the defendants of costs to which they would otherwise be entitled.

9. In my view, the appropriate order in respect of that round is for the plaintiff to pay the relevant defendants’ costs. I note that the defendants have not sought an order that the costs be assessed on any other than the ordinary basis nor have they sought an order that the costs be assessable forthwith.

10. For those reasons, I order, in respect of the matters determined in YZ v Amazon (No 3), that the plaintiff pay three-quarters of the costs of the first, third, fourth and sixth defendants. In respect of the argument determined in YZ v Amazon (No 4), the order is that the plaintiff pay those defendants’ costs.

**********

Decision last updated: 18 December 2015