Supreme Court New South Wales Medium Neutral Citation: Network Ten Pty Limited v van Onselen (No 2) [2023] NSWSC 863 Hearing dates: On the papers Date of orders: 24 July 2023 Decision date: 24 July 2023 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: The defendant is to pay the plaintiff's costs Catchwords: COSTS — the plaintiff brought proceedings alleging breach by the defendant of a non-disparagement clause in a Deed of Release — the plaintiff established breach and the Court made a declaration to that effect but the Court declined to grant an injunction restraining further breach by the defendant on the footing that there was no realistic risk that the defendant would further breach — HELD — the plaintiff was entitled to an order for costs on the footing that it had, in practical terms, succeeded in circumstances where the defendant had denied breach and had denied the validity of the non-disparagement clause and had himself put that there was no realistic prospect of him further breaching Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Costs Parties: Network Ten Pty Limited (ABN 91 052 515 250) (Plaintiff) Dr Peter van Onselen (Defendant) Representation: Counsel: A Moses SC and P Sharp (Plaintiff) Solicitors: Baker McKenzie (Plaintiff) Laxon Lex Lawyers (Defendant) File Number(s): 2023/00177027 JUDGMENT 1. On 14 July 2023, I gave the principal judgment in these proceedings: Network Ten Pty Limited v van Onselen [2023] NSWSC 829 (the Principal Judgment). 2. Definitions in the Principal Judgment are used here. 3. I made a declaration in the following terms: The Court declares that the publication in The Australian Business Review section of The Australian newspaper on 29 May 2023 of the Article headed "Paramount woes raise questions about the long term viability of Network 10" was a breach by the defendant of cl 7.1 of the Deed entered into by the plaintiff and the defendant on 3 March 2023. 1. However, I declined to order an injunction restraining further breach, on the basis that whilst a breach had been established, I was satisfied that there is no real risk that Dr van Onselen will further breach the Deed. 2. Only costs remains to be dealt with. The parties have agreed that costs is to be dealt with on the papers. I have received written submissions from both sides. 3. Ten seeks an order that Dr van Onselen pay its costs of the proceedings on the ordinary basis as agreed or assessed on the footing that it succeeded. 4. Dr van Onselen submits that the Court should make no order as to costs to the intent that each party should pay their own and, in the alternative, that should the Court consider that Ten should have a costs order, the claimable costs should be reduced having regard to the limited relief that was obtained. Dr van Onselen submits that an appropriate alternative costs order would be that he pay Ten's costs fixed in a lump sum of $50,000, or such other lump sum as the Court determines, payable within 21 days. 5. Dr van Onselen puts that the following factors support the making of the orders he seeks: 1. he put Ten on notice of his intention to write the Article but Ten did not warn him that if he went ahead, he would be in breach of the Deed and Ten did not threaten litigation; 2. after the Article was published, Ten foreshadowed seeking an injunction but the possibility of declaratory relief was not foreshadowed prior to the commencement of proceedings; and 3. the principal relief sought by Ten was an injunction, which it did not succeed in obtaining. 1. Costs orders are within the discretion of the Court. The starting point is that unless the Court considers that some other order should be made, costs are to follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. 2. The pivotal issue in the proceedings was whether Dr van Onselen had, by the Article, breached cl 7.1. 3. In its case, Ten relied on the terms of the provision and the text of the Article. 4. On the question of breach, Dr van Onselen raised a question of construction of cl 7.1 (without actually articulating a constructional choice) and its validity on the footing that it is a restraint of trade and against public policy. On the question of relief, he raised an untenable unclean hands defence which failed on the facts. He opposed the making of a declaration, which from the outset was sought in the Summons. He resisted the granting of an injunction on the footing that there was no real risk that he would breach again (on the assumption that he lost on the issue of construction). 5. The fact that Ten did not warn Dr van Onselen that he would be in breach does not in any way assuage the fact that he breached. After the proceedings commenced, Dr van Onselen continued to dispute that he was in breach. He went a step further and argued that cl 7.1 was void. 6. Although Ten sought an injunction and did not obtain it, the practical outcome was that Ten succeeded and Dr van Onselen failed. Ten's stance on the operation of the Deed and Dr van Onselen's breach of it was fully vindicated and it obtained a declaration. Given Dr van Onselen's own avowed position that there is no risk of further breach by him, and giving him full faith and credit for it, Ten is, in practical terms, in no different a position to that in which it would have been had an injunction been granted. 7. But even if one were to take the view that Ten partially lost because one of the forms of relief which it claimed was declined, I do not consider that that is an issue which, in the present case, is one properly to be separated out from the issues on which Ten won and which resulted in it obtaining a substantive declaration. 8. The Court's refusal to order an injunction is not to be equated with partial success by Dr van Onselen. 9. The material presently before the Court is insufficient to make an assessment of the appropriate amount for a lump sum costs order, even if the Court were minded to make such an order. 10. The Court orders the defendant to pay the plaintiff's costs. ********** 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: 24 July 2023