Federal Court of Australia V'landys v Australian Broadcasting Corporation (No 2) [2020] FCA 1265 File number: NSD 185 of 2020 Judgment of: WIGNEY J Date of judgment: 4 September 2020 Catchwords: COSTS – where applicant granted leave to amend statement of claim – whether applicant should pay the costs of the application and costs thrown away by reason of the amendment if amendment application not unreasonably opposed – whether respondents should pay costs on the basis that costs follow the event Cases cited: Media Ocean Ltd v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319 V'landys v Australian Broadcasting Corporation [2020] FCA 1264 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 10 Date of last submissions: 26 August 2020 Date of hearing: 11 August 2020 Counsel for the Applicant: Mr B McClintock SC with Ms S Chrysanthou Solicitor for the Applicant: YPOL Lawyers Counsel for the Respondents: Ms C Amato Solicitor for the Respondents: Australian Broadcasting Corporation Legal Services ORDERS NSD 185 of 2020 BETWEEN: PETER V'LANDYS AM Applicant AND: AUSTRALIAN BROADCASTING CORPORATION First Respondent CARO MELDRUM-HANNA Second Respondent order made by: WIGNEY J DATE OF ORDER: 4 september 2020 THE COURT ORDERS THAT: 1. The applicant pay the first and second respondents' costs of the interlocutory application filed on 30 July 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WIGNEY J: 1 The applicant in this matter, Mr Peter V'landys AM, has commenced proceedings for defamation against the Australian Broadcasting Corporation (ABC) and one of its employed journalists, Ms Caro Meldrum-Hanna. On 11 August 2020, I heard an interlocutory application by Mr V'landys in which he sought leave to amend his statement of claim to include new particulars of his claim for aggravated damages and orders for discovery and interrogatories. The orders for discovery and interrogatories were, in effect, contingent on Mr V'landys being granted leave to amend. On 17 August 2020, I delivered an ex tempore judgment in which I indicated that Mr V'landys should be granted leave to amend and that there should be limited discovery and interrogatories. Orders were subsequently made to give effect to that judgment. 2 The only remaining issue concerns costs. Mr V'landys agreed that he should pay the costs thrown away by the ABC and Ms Meldrum-Hanna by reason of the amendment. He submitted, however, that his application was largely successful and that a costs order should be made in his favour. The ABC and Ms Meldrum-Hanna contended, however, that Mr V'landys should pay their costs. They submitted that the terms usually imposed on a party who satisfies the Court that they should be granted leave to amend is that they pay the costs of the application and the costs thrown away by reason of the amendment, so long as the amendment application was not unreasonably opposed. The rationale for that general principle was explained by Jagot J in Media Ocean Ltd v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319 (at [34]): … the basis of this general principle is that an applicant seeking leave to amend has an independent obligation to satisfy the Court that leave should be granted, irrespective of the position that the respondent takes. That is, even if the respondent does not oppose an application for leave to amend, such leave will not automatically be granted. The person seeking to amend must come to the Court with sufficient material and submissions to persuade the Court that leave should be granted. Accordingly, the parties would have to attend Court for that purpose anyway. 3 Whether there is in fact such a general principal is perhaps debatable. The Court's discretion to award costs is very broad and generally unfettered. Much will depend on the facts of the case in question. There may be cases where the case for allowing an amendment is sufficiently clear such that there is no need for a hearing and the application can be determined without an oral hearing, particularly if the application is unopposed. There may also be cases where the vigorous, though not unreasonable, objection to an amendment application may justify a costs order in favour of the successful amending party on the basis of what is also frequently said to be the general principle that costs follow the event. 4 Whatever may be said to be the relevant general principle or principles, the particular circumstances of this application are such that the appropriate costs order is that Mr V'landys pay the ABC and Ms Meldrum-Hanna's costs of the application. There are a number of reasons why that is so. 5 First, the amendment application was made late and no adequate explanation was given for the delay. As explained in the judgment granting leave to amend, the issue concerning the sufficiency of Mr V'landys' particulars of aggravated damages had been questioned by the ABC and Ms Meldrum-Hanna in correspondence from a fairly early point in time in the proceedings: V'landys v Australian Broadcasting Corporation [2020] FCA 1264. It had also been raised at a number of case management hearings, but generally only in the context of the ABC and Ms Meldrum-Hanna's opposition to orders concerning discovery and interrogatories. Mr V'landys provided additional or alternative particulars in the correspondence; however, no amendment application was forthcoming until the Court effectively ordered that one be filed if Mr V'landys wanted to press for discovery or interrogatories that hinged on the new particulars. 6 Second, the ABC and Ms Meldrum-Hanna's opposition to the amendment application, and the consequent application for discovery and interrogatories, was far from unreasonable. Indeed, in all the circumstances, it was entirely understandable. That is perhaps most clearly demonstrated by the fact that the final iteration of the amended particulars, being the iteration that was pressed at the hearing, only emerged shortly prior to the hearing. It differed in material respects from earlier iterations. Even then, as explained in the judgment granting leave to amend, various aspects or elements of the particulars were vague, ambiguous and somewhat difficult to understand. They were far from pellucid. It might also fairly be said that some of the principles relating to aggravated damages in defamation cases are also not entirely pellucid. 7 It may be accepted, as Mr V'landys submitted, that the ABC and Ms Meldrum-Hanna's opposition to the amended particulars of aggravated damages was unwavering, vigorous and ultimately unsuccessful. In the particular circumstances of this case, however, that is somewhat beside the point. The vigorous opposition to the amended particulars, particularly in their earlier forms, was justified and not unreasonable. 8 Third, and related to the first two points, this genuinely was a case where it was necessary for the parties to attend an oral hearing for the purpose of persuading the Court that leave to amend was warranted. It was really only when the nature of Mr V'landys' case for aggravated damages was teased out at the hearing that the capacity of the particulars to support that case became apparent both to the Court and, no doubt, the ABC and Ms Meldrum-Hanna and their legal representatives. The application was also made so close to the hearing that Mr V'landys also had some explaining to do. The success of his application was by no means a fait accompli. 9 Fourth, the full scope of the discovery and interrogatories sought by Mr V'landys was not permitted. While the parties did not make detailed or comprehensive submissions concerning the scope and form of the proposed discovery and interrogatories, the ABC and Ms Meldrum-Hanna's general opposition to the discovery and interrogatories sought by Mr V'landys was not unreasonable. 10 Mr V'landys submitted that if the Court was not minded to order that the ABC and Ms Meldrum-Hanna pay his costs, a "reasonable alternative" would be to order costs in the cause. For the reasons already given, that is not a reasonable alternative. The appropriate order in all the circumstances is that Mr V'landys pay the ABC and Ms Meldrum-Hanna's costs of the interlocutory application filed on 30 July 2020. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate: Dated: 4 September 2020