King & Anor v Greenwood (No.4) [2023] NSWDC 5

District Court New South Wales

Medium Neutral Citation: King & Anor v Greenwood (No.4) [2023] NSWDC 5 Hearing dates: On the papers Date of orders: 30 January 2023 Decision date: 30 January 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 12 Catchwords: COSTS – successful defamation suit – self-represented plaintiffs apply for costs Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Defamation Act 2005 (NSW) s 40 Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.2, 42.5 Cases Cited: Cachia v Hanes (1994) 179 CLR 403 Maytom v Kennett [2014] NSWSC 116 King & Anor v Greenwood [2022] NSWDC 61 Lawrence v MD Nikolaidis & Co (2003) 57 NSWLR 355 Texts Cited: G Dal Pont, Law of Costs (4th ed, LexisNexis Butterworths, electronic version) Ritchie's Uniform Civil Procedure (NSW) (LexisNexis Butterworths) Category: Costs Parties: Mr C King (first plaintiff) Mrs J King (second plaintiff) Mr A Greenwood (defendant) Representation: Mr C King, in person Mr A Greenwood, in person File Number(s): 2021/00063201 Publication restriction: Nil

REASONS FOR Judgment

Background 1. On 15 March 2022, I delivered reasons for judgment in this defamation suit (King & Anor v Greenwood [2022] NSWDC 61). The plaintiffs were successful in obtaining damages of $46,941.04 ($31,294.03 for the first plaintiff and $15,647.01 for the second plaintiff) for the first publication, but they were unsuccessful in relation to the second publication. 2. I reserved the question of costs of the proceeding noting that there was pending an application for contempt by the plaintiffs against the defendant arising from an alleged non-compliance with an interlocutory injunction granted by Gibson DCJ on 3 June 2021. Order 7 made on 15 March 2022 contemplated that upon determination of the application for contempt, the parties would have the opportunity, within 7 days, to provide written submissions on costs of the proceedings with any contest to be determined on the papers. 3. Subsequent to my decision, the plaintiffs renewed their application for contempt – or, more precisely, brought an application for referral to the Supreme Court for determination of contempt - by filing an amended notice of motion on 24 August 2022. That application was heard by Gibson DCJ on 7 December 2022 and determined by her Honour on 9 December 2022. It is notable that all parties were legally represented on that application following a referral for legal assistance made by her Honour for the purpose of that application. Her Honour dismissed the application for referral to the Supreme Court and ordered the parties to bear their own costs of the plaintiffs' application. 4. By their written submissions filed on 21 December 2022, the plaintiffs submit that they should receive an order for costs on an indemnity basis of the proceeding, whilst acknowledging a limitation upon the Court making such order in terms I will shortly return to. Following receipt of those submissions, I directed my Associate to email the defendant, on 11 January 2023, reminding the defendant of order 7 made on 15 March 2022, and inviting him to make responsive submissions by 20 January 2023. In the event, the defendant did not supply submissions on costs. The defendant has had fair opportunity to be heard on the question of costs but has not availed himself of that opportunity. There is no procedural impediment in the Court proceeding to now consider the plaintiffs' application.