District Court New South Wales Medium Neutral Citation: Tal v EQ Media Productions Pty Ltd [2022] NSWDC 430 Hearing dates: 23 September 2022 (On the papers) Date of orders: 28 September 2022 Decision date: 28 September 2022 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. The summons filed by the applicant on 17 August 2022 is dismissed; 2. Pursuant to s 98 of the Civil Procedure Act 2005, the applicant's costs of and incidental to the summons are to be paid by the respondent forthwith in the specified gross discounted amount assessed at $13,600; 3. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: PRACTICE & PROCEDURE – dismissal of summons seeking preliminary discovery pursuant to UCPR r 5.3 – orders seeking primary relief became unnecessary due to capitulation by respondent; COSTS – respondent to pay applicant's costs of and incidental to the summons assessed on a specified gross sum basis to be paid forthwith Legislation Cited: Civil Procedure Act 2005 (NSW), s 58(2), s 98 Uniform Civil Procedure Rules 2005 (NSW), r 5.3, r 42.1 Cases Cited: Gray v Richards (No 2) [2014] HCA 37 House v The King (1936) 55 CLR 499; [1936] HCA 40 McNamara v San [2010] NSWSC 809 Northern Territory v Sangare [2019] HCA 25 Re the Minister for Immigration and Ethic Affairs of the Cwth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 9 Category: Procedural rulings Parties: Erez Tal (Applicant) EQ Media Production Pty Ltd (Respondent) Representation: Counsel: Ms S Chrysanthou SC with Mr G Radburn (Applicant) Mr MJ Lewis (Respondent) Solicitors: Somerville Laundry Lomax (Applicant) Somerville Legal (Respondent) File Number(s): 2022/243337 Publication restriction: None Judgment Summons 1. On 17 August 2022, the applicant, Mr Erez Tal, filed this summons seeking orders pursuant to Uniform Civil Procedure Rules 2005 (NSW), ("UCPR") r 5.3, requiring that the respondent, EQ Media Productions Pty Ltd, give him discovery access to television episodes in which he is featured. The application was filed in advance of the broadcast of those programmes in this jurisdiction. 2. In the lead up to the hearing the respondent agreed to provide the applicant with access to the material sought. Consequently, the residual question to be determined concerns the costs of and incidental to the application. This requires a review of the factual background to the proceedings. Factual and procedural background 1. Mr Tal is a North Coast real estate agent. EQ Media Productions Pty Ltd is a documentary film maker. The parties entered into an agreement to record a series of television programmes. After the recordings took place, Mr Tal became concerned about the use of his name and his image in the programmes. Consequently, he consulted his solicitors and took a series of steps to seek to protect his reputation. Those steps included a request that the respondent allow him to view the footage of the programmes before broadcast. 2. Following unsatisfactory responses to those requests for him to view the footage, Mr Tal withdrew his consent for his involvement in the programme. This led to contentious correspondence culminating in a letter dated 24 May 2022 from Mr Tal's solicitors, Somerville Laundry Lomax, to the solicitors for EQ Media Productions Pty Ltd, Somerville Legal, threatening litigation against the respondent. The basis for that threat was a claimed breach of the terms of the earlier agreement between the parties. 3. Absent a reply from or on behalf of the respondent, in a letter dated 24 May 2022, in the background context of some media publicity in a magazine described as Pedestrian TV, indicating the programme in question would be broadcast on Nine in the following year, Mr Tal's solicitor filed the present summons seeking preliminary discovery. 4. The applicant listed the summons for an urgent mention on circuit sittings in Lismore on 22 August 2022 for the purpose of seeking procedural directions. A hearing of the summons was then listed for 24 August 2022. 5. On 24 August 2022, after discussions between the parties, which led to a reduced level of urgency for a hearing to take place, the parties reached an agreement in the form of short minutes identifying a timetable for the filing of evidence in anticipation of an ultimate hearing. A hearing of the summons was then fixed to take place in Sydney on 22 September 2022, on a consideration of the balance of convenience. 6. The urgency of the relief sought had lessened because, at the listing on 24 August 2022, Mr Hemsworth, the solicitor for the respondent indicated to the Court that there was "no pending publication of [the programme] at all. There's nothing advertised to say that it's going to be put on this year". 7. Contrary to that representation, the programme was in fact aired overseas on Discovery Plus, on Amazon and on Prime Video. The application for preliminary discovery therefore became redundant. 8. The applicant's solicitors were informed of that fact by Mr Hemsworth by letter dated 5 September 2022. The full consequences of those events are not as yet defined. 9. On 14 September 2022, the Court was informed that the claim for preliminary discovery had been resolved because since the initial filing of the summons the respondent had recanted and agreed to allow the applicant to view the relevant episodes of the programme. As a result, the only remaining issue to be determined was the cost of the summons. 10. In the lead up to those events, the scheduled hearing date for the summons fixed for 22 September 2022 was declared to be a public holiday owing to the passing of her Majesty the Queen. 11. Consequently, the parties agreed that they would serve their materials on the issue of costs, including submissions, by 22 September 2022, so that costs could then be determined on the papers at the first available opportunity. That determination now follows. Costs consideration and determination 1. The parties exchanged and filed their respective written submissions on 21 September 2022. Those submissions addressed the 20 September 2022 affidavit of the applicant's solicitor, Mr Sean Radburn, and the 21 September 2022 affidavit of the respondent's solicitor, Mr Ben Hemsworth. 2. The 20 September 2022 affidavit of Mr Sean Radburn, at paragraphs 22 to 24, identified the applicant's costs incurred in the sum of $17,201.25, which the applicant then discounted by thirty per cent to $13,631.13. 3. The submissions on behalf of the applicant were to the effect that since the respondent had recanted its resistance to the primary relief sought, and has now allowed the applicant to have viewing access to the recorded programmes, this amounted to a complete capitulation concerning the principal relief sought. It was submitted that those circumstances justified the respondent being required to pay the applicant's costs of and incidental to the summons. 4. In that regard, it was further submitted that before such capitulation, the applicant had pursued reasonable enquiries over the course of many months seeking to obtain access to the material he was seeking to view before filing his summons for preliminary discovery. 5. Consequently, the submissions on behalf of the applicant went on to state that as he had effectively achieved a disposition of the proceedings without a hearing, with the result that there has been no "event" from which costs may "follow" (UCPR r 42.1), the Court's exercise of discretion as to costs may be determined by considering whether a party had acted unreasonably in the antecedent events with the result that the opposing party has incurred costs which could have been avoided: Re the Minister for Immigration and Ethic Affairs of the Cwth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 9, at 624-625. 6. In contrast to the applicant's submissions, the respondent submitted that the applicant ought to pay the respondent's costs on the ordinary basis, or in the alternative, there should be no order for costs. 7. The respondent's costs submission proceeded on the basis that the proceedings have been effectively abandoned by the applicant. Given the factual background described above, the applicant has aptly described that submission as disingenuous. 8. In my view, in the factual context outlined above, the respondent's costs submission is spurious and should not be accepted. The proceedings have come to an end because it became otiose to further pursue them. Beforehand, the respondent's resistance to the applicant's requests was unreasonable. They have been rendered futile as the respondent has capitulated to the applicant's primary request for relief. 9. On an analysis of the whole proceedings, as explained in McNamara v San [2010] NSWSC 809, at [121(g)], in my view, the critical factor which has brought the proceedings to an effective end has been the respondent's capitulation and the fact that on 5 September 2022, it became known to the applicant that the material in question had already been aired overseas. This was in circumstances where, until 5 September 2022, the respondent had ignored correspondence and, it appears, had delayed revealing the fact of the broadcast overseas. 10. The costs discretion conferred on the Court by s 98 of the Civil Procedure Act 2005 (NSW) is unfettered except as to the provision of reasons: House v The King (1936) 55 CLR 499, at pp 503 and 505; [1936] HCA 40. That discretion must be exercised according to the dictates of justice in accordance with s 58(2) of the Civil Procedure Act. It must be exercised judicially, according to the justice of the case: Gray v Richards (No 2) [2014] HCA 37, at [2]; Northern Territory v Sangare [2019] HCA 25, at [25]. 11. In light of the chronological history of the dispute as identified in the evidence as summarised in these reasons, and in light of the principles cited in the preceding paragraph, I consider the dictates of justice require that the applicant be compensated for the costs he has incurred in having to commence and pursue these proceedings even though the proceedings have ultimately become redundant. 12. The respondent's earlier resistance and significant silence at critical stages of the correspondence, and the dealings between the parties have led to the applicant incurring significant costs prior to the capitulation of the respondent on the primary relief sought by the applicant's summons. 13. Of particular relevance is what turned out to be the factually incorrect representation made to the Court by the solicitor for the respondent as cited at paragraph [8] above. That representation had the effect of de-escalating the urgency of a hearing. This has coincided with the respondent's capitulation on the relief claimed by the applicant. This occurred at a time when the applicant was anxious to prosecute his claim for relief. It appears that the applicant was blindsided by the representation made on 24 August 2022. 14. In taking the whole of the circumstances into account I conclude that the applicant should be compensated for the costs he has incurred as a result of the need to pursue his summons until the point when it became otiose. 15. I have examined the applicant's costs estimated at $17,201.25 as set out at paragraph 22 of the affidavit of Mr Sean Radburn. In my view those costs appear inherently reasonable and are responsive to the circumstances in which the applicant found himself, which compelled him to pursue the relief sought by his summons, which was belatedly agreed to by the respondent. 16. Applying the required broad-brush discounted approach to avoid the further cost, inconvenience and delay that would otherwise be incurred in a formal costs assessment, I apply the suggested thirty per cent discount to the identified sum of $17,201.25 to round those costs off at $13,600 on a specified gross sum basis to be paid forthwith. Orders 1. I make the following orders: 1. The summons filed by the applicant on 17 August 2022 is dismissed; 2. Pursuant to s 98 of the Civil Procedure Act 2005, the applicant's costs of and incidental to the summons are to be paid by the respondent forthwith in the specified gross discounted amount assessed at $13,600; 3. Liberty to apply on 7 days' notice if further or other orders are required. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2022