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. Limitation upon recovery of costs 1. The plaintiffs acknowledged (in paragraph 3 of their written submissions) that as self-represented litigants throughout the proceeding, they are limited by the High Court's decision in Cachia v Hanes (1994) 179 CLR 403 in what they can recover. Ostensibly, they expressed themselves in terms generally consistent with the High Court's decision by seeking to be reimbursed for disbursements and fees associated with the defamation claim. 2. In Maytom v Kennett [2014] NSWSC 116, and subject to the discrete matter of witness expenses, Hallen J at [142] described what a self-represented litigant may recover from an unsuccessful opponent as being 'out-of-pocket expenses, of a type that would have been recoverable as disbursements if they had been legally represented and which they had actually and reasonably incurred'. At [141], Hallen J considered specific examples of what expenses were recoverable. What is covered, and what is excluded, by this expression has also been summarised, amongst other places, in G Dal Pont, Law of Costs (4th ed, LexisNexis Butterworths, electronic version) at [7.29] and Ritchie's Uniform Civil Procedure (NSW) (LexisNexis Butterworths) at [42.2.25]. The plaintiffs are each entitled to recover expenses of this kind. 3. In addition, the first plaintiff, Mr King, but not the second plaintiff, gave evidence at the hearing before me. Mr King may be entitled to witness fees in accordance with the observations of Hodgson JA (with whom Beazley JA, as her Excellency then was, agreed) in Lawrence v MD Nikolaidis & Co (2003) 57 NSWLR 355 at [39]-[49]. Mr King gave evidence about relevant matters and was cross-examined. His giving evidence was necessary to assist resolution of certain issues. Mr King, but not Ms King, is entitled, in principle, to witness expenses in addition to other out of pocket expenses, in the sense that I have referred to. 4. I have considered a separate point whether there should be some diminution or restriction upon the recovery of expenses having regard to the circumstance that the plaintiffs succeeded only on one of the two publications. It is not clear to me, however, that the issues concerning the second publication (upon which the plaintiffs failed) were so clearly separable as to warrant an apportionment in this way. Most of the time of the hearing, at least, centred upon issues concerning triviality and damages. The plaintiffs' application for indemnity costs 1. Notwithstanding their initial application only for reimbursement of disbursements and fees, the plaintiffs went on (in paragraphs 4-9) in their written submissions to see, more broadly recovery of costs on an indemnity basis against the defendant. They did so by reference to what they contended was (broadly speaking) unreasonable delay in the defendant's conduct of the proceeding up to the hearing and his unreasonable rejection of a rules offer under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). The plaintiffs invoked s 98 of the Civil Procedure Act 2005 (NSW) and s 40 of the Defamation Act 2005 (NSW). 2. Both of those statutory provisions refer to costs in the general sense which, by reason of the authority of Cachia v Hanes, are proscribed in their operation for self-represented litigants. The costs for which orders may be made under either (or both) statutory provisions ordinarily (per r 42.2 of the UCPR) constitute the amount a court orders a successful party as a partial indemnity for their professional fees and expenses incurred in the course of the litigation. The matters which the plaintiffs rely upon to seek costs on an indemnity basis (per r 42.5 of the UCPR) would only alter the ordinary rule under r 42.2 (that costs are paid on a party and party basis) to the extent that they would grant recovery of costs in a closer approximation to the amount the client is obliged to pay to their solicitor for the latter's professional services. 3. Here, of course, the plaintiffs (relevantly) incurred no professional fees and expenses of the proceedings. There is no occasion therefore to consider the reasonableness, or otherwise, of the defendant's conduct of the proceeding or his rejection of the plaintiffs' rule offer. They are not entitled to costs at large. Order 1. For the above reasons, the appropriate orders of or concerning costs are: 1. the plaintiffs are each entitled to out-of-pocket expenses, of a type that would have been recoverable by them as disbursements if they had been legally represented and which they had actually and reasonably incurred; and 2. the first plaintiff is also entitled to expenses constituted by his giving evidence in the hearing as agreed to or assessed. ********** 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: 30 January 2023