Creak v Channel Seven Sydney Pty Ltd [2014] NSWSC 201

Supreme Court New South Wales

Medium Neutral Citation: Creak v Channel Seven Sydney Pty Ltd [2014] NSWSC 201 Hearing dates: 7 March 2014 Decision date: 07 March 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Order 1 made on 19 December 2012 be vacated. (2) The proceedings be adjourned to a directions hearing before a Registrar on 12 August 2014. (3) There be liberty to apply. (4) The defendant's costs of and incidental to the notice of motion filed 18 February 2014, including its costs of any directions hearing that was only concerned with making directions in relation to that notice of motion, be the defendant's costs in the cause. (5) The notice of motion filed 18 February 2014 be otherwise dismissed. Catchwords: COSTS - no question of principle. Category: Interlocutory applications Parties: Ian David Charles Creak (Plaintiff) Channel Seven Sydney Pty Ltd (Defendant) Representation: Counsel: P.M. Wass SC (Plaintiff) A.T.S. Dawson (Defendant) Solicitors: Leverage Australia Solicitors (Plaintiff) Addisons Lawyers (Defendant) File Number(s): 2011/330038

ex tempore Judgment 1There was listed before me today a notice of motion filed by the plaintiff seeking a stay of these proceedings until the District Court determines an appeal that he has lodged against his conviction in the Local Court on various charges. It is unnecessary to describe the nature of those charges. It suffices to state that it appears to be accepted that the subject matter of the charges is related to the matters raised in the plaintiff's statement of claim which sues the defendant in defamation. 2When the motion was filed, the date listed for the appeal was 14 October 2014. The motion was initially due to be heard by me on 4 March 2014, but was adjourned as the parties indicated that there was some reason to believe that the hearing of the appeal in the District Court could be brought forward. Through the plaintiff's efforts, that has occurred. The appeal has now been listed towards the end of July 2014. 3In those circumstances, the defendant has taken the legitimate position that it is simply not worth fighting about the motion in circumstances where, in substance, the plaintiff is seeking an adjournment for a period of only a few months. I will shortly make some orders that reflect that common position. 4However, the defendants did seek their costs of and incidental to the motion. Counsel for the defendants, Mr Dawson, pointed to an alleged history of non-compliance with various directions on the part of the plaintiff. Some of those non-compliances appear to be unrelated to the application by the plaintiff for a stay and they can be put to one side. However, a review of the Court file does indicate that the notice of motion for a stay has been a long time coming, and the defendant has been patient in allowing the plaintiff the opportunity to bring it on. 5Mr Dawson submits that, in circumstances where there has been tardiness on the part of the plaintiff in bringing the motion, where the motion itself was a finely balanced application and where, properly characterised, it involved the plaintiff seeking an indulgence, his client is entitled to an order for its costs of and incidental to the motion or, in the alternative, an order that those costs be his client's costs in the cause. 6Senior Counsel for the plaintiff, Ms Wass, resists any order that her client pay the defendant's costs on any basis. She points to the fact that the defendant has consented to the various extensions of orders requiring the filing of a notice of motion for a stay. She submits that it is wrong to characterise what the plaintiff seeks as an indulgence. Instead, she submits that, by bringing an application for a stay the plaintiff was in effect vindicating a right which can be characterised as his right not to be subject to the oppression of being involved in civil proceedings which could potentially impact upon criminal proceedings. 7Ms Wass' characterisation of what the motion sought to vindicate can be accepted for present purposes, although it must be remembered that, unlike many cases involving stays, in this case the party that sought the stay is the plaintiff. 8From the perspective of a defendant who is being sued by a plaintiff who is also facing criminal charges, it is difficult to see why they should be put to extra expense because of the circumstance that a plaintiff who has been convicted decides to exercise their right of appeal. 9To the extent that the submissions drifted into the area of the relative merits of the motion, the implicit invitation to address that is an invitation the Court should decline. The authorities are clear that, in circumstances where parties resolve such a matter themselves, the Court should not retry the merits of the application that has been resolved. The Court should only consider the merits to the extent of forming an opinion that it is clear that one side would have been successful, or the other side surrendered. I cannot form any such conclusion at this point. 10Nevertheless, I return to the point concerning the position of the defendant. If the plaintiff is being oppressed or vexed in these circumstances then it is in part due to the decisions that he has made, namely to bring civil proceedings and to elect to exercise his right of appeal. 11In those circumstances, in my view, it must follow that a defendant should not be at risk in respect of the costs that they incur of and incidental to an application for a stay, nor at risk of paying the plaintiff's costs of and incidental to the seeking of such a stay. 12In those circumstances, the appropriate order is that the costs of and incidental to this application will be the defendant's costs in the cause. 13Accordingly, the Court orders that: (1)Order 1 made on 19 December 2012 be vacated. (2)The proceedings be adjourned to a directions hearing before a Registrar on 12 August 2014. (3)There be liberty to apply. (4)The defendant's costs of and incidental to the notice of motion filed 18 February 2014, including its costs of any directions hearing that was only concerned with making directions in relation to that notice of motion, be the defendant's costs in the cause. (5)The notice of motion filed 18 February 2014 be otherwise dismissed.