Capilano Honey Ltd v Dowling (No 5) [2021] NSWSC 653

Supreme Court New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Dowling (No 5) [2021] NSWSC 653 Hearing dates: On the papers Decision date: 11 June 2021 Jurisdiction: Common Law Before: Button J Decision: (1) The defendant, Mr Shane Dowling, must pay the costs of the litigation of the plaintiff Capilano Honey Ltd on the ordinary basis. (2) The defendant, Mr Shane Dowling, must pay the costs of the litigation of the plaintiff Dr Ben McKee on an indemnity basis. Catchwords: COSTS — defamation and injurious falsehood claims — whether costs should be awarded on ordinary or indemnity bases in respect of each claim Legislation Cited: Defamation Act 2005 (NSW), s 40 Cases Cited: Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 Capilano Honey Ltd v Dowling (No 4) [2021] NSWSC 264 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 Category: Costs Parties: Hive and Wellness Australia Pty Ltd (First Plaintiff) Dr Ben McKee (Second Plaintiff) Shane Dowling (Defendant) (self-represented) Representation: Counsel: M A Cowden (Plaintiffs)

Solicitors: Addisons Lawyers (Plaintiffs) File Number(s): 2016/299522 Publication restriction: Nil

Judgment

Introduction 1. On 26 March 2021, I returned verdicts and entered judgments for the plaintiffs, and gave reasons for doing so, in Capilano Honey Ltd v Dowling (No 4) [2021] NSWSC 264. Costs were reserved, after which affidavit evidence and written submissions were received from all three parties with respect to the question. This judgment resolves the question of costs, and concludes the litigation. 2. In this judgment, I adopt the same abbreviations as in the substantive judgment, and this latter judgment should be read in conjunction with the former. 3. As I understood the written submissions, there was no real dispute as to the liability of the defendant to pay the costs of the plaintiffs on the ordinary basis. And even if I am wrong in my understanding of the position of the defendant, in any event, the plaintiffs having succeeded in their claims, in my opinion there is no reason why costs should not follow the event, at the least on the ordinary basis. 4. The real dispute that remains for my consideration is whether the defendant should be liable to pay indemnity costs to the plaintiff Capilano (which succeeded in its claim for injurious falsehood) or the plaintiff Dr McKee (who succeeded in his claim for defamation). 5. I shall be brief in my determination of those questions, not least because I believe that the enquiry is, with respect, an arid one: on the evidence, there is no prospect whatsoever of the defendant being in a position to meet the costs of the successful plaintiffs on either basis. Having said that, I have borne steadily in mind that the impecuniosity or otherwise of the defendant is irrelevant to the question of costs: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25.