Supreme Court New South Wales Medium Neutral Citation: Toben v Nationwide News Pty Ltd; Toben v Mathieson (No 4) [2016] NSWSC 224 Hearing dates: Application determined on the papers Date of orders: 14 March 2016 Decision date: 14 March 2016 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff to pay Ms Milne's costs as agreed or assessed on the ordinary basis. Catchwords: COSTS – indemnity costs – where proceedings stayed for abuse of process Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.5 Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Toben v Nationwide News; Toben v Mathieson [2015] NSWSC 1784 Toben v Matheison; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 Toben v Milne [2014] NSWCA 200 Category: Costs Parties: 2013/200157 Fredrick Toben (plaintiff) Nationwide News Pty Ltd (defendant) 2013/200128 Fredrick Toben (plaintiff) Clive Matheson (first defendant) Christian Kerr (second defendant) Senator Christine Milne (third defendant) Representation: Counsel: R Rasmussen (plaintiff) P Afshar (defendant in 2013/200157; first and second defendants in 2013/200128) Solicitors: Carters Law Firm (plaintiff – notice of ceasing to act filed after decision reserved) Ashurst (defendant in 2013/200157; first and second defendants in 2013/200128) Baker & McKenzie (third defendant in 2013/200128) File Number(s): 2013/2001282013/200157 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: On 30 November 2015, I made an order staying these proceedings as an abuse of process: Toben v Nationwide News; Toben v Mathieson [2015] NSWSC 1784. On 3 December 2015, I determined an application for costs brought by all but one of the defendants: Toben v Nationwide News Pty Ltd; Toben v Mathieson (No 3) [2015] NSWSC 1862. I ordered that Dr Toben pay those defendants' costs of the notice of motion determined in the judgment (the abuse of process application) as agreed or assessed on the indemnity basis and that Dr Toben otherwise pay those defendants' costs of the proceedings as agreed or assessed on the ordinary basis. 2. There was no appearance for the remaining defendant, former Senator Christine Milne, on that date, apparently due to an administrative error on the part of the Court. I ordered that Dr Toben pay her costs as agreed or assessed on the ordinary basis. Dr Toben did not oppose that order. In light of the absence of Ms Milne, I granted her leave to file written submissions seeking any different order. 3. In accordance with the leave granted and pursuant to r 42.5 of the UCPR, Ms Milne seeks an order that Dr Toben pay her costs on an indemnity basis "except for any costs relating to costs orders made to date". This judgment determines that application. 4. The award of indemnity costs to the other defendants was an application of the principle stated by the High Court in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 and followed from my conclusion at [105] of the primary judgment that the proceedings were "a cynical misuse of the process of the court". Ms Milne relies on the same principle. 5. As already noted, the award of indemnity costs to the other defendants related only to the costs of determining the abuse of process application. My reason for allowing all other costs only on the ordinary basis was that I considered that the abuse of process application could have been brought earlier. In the meantime Dr Toben had been ordered to pay some of Ms Milne's costs, and may have incurred costs himself, in a series of unrelated interlocutory disputes with Ms Milne. In particular, he was unsuccessful in an application for leave to amend the statement of claim: see Toben v Matheison; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530. The newspaper defendants did not participate in that argument. I ordered that Dr Toben pay Ms Milne's costs of that application. Dr Toben brought an appeal against that judgment. The Court of Appeal dismissed the appeal but granted Dr Toben leave to re-plead one imputation. The Court ordered that each party bear his and her own costs of the appeal: Toben v Milne [2014] NSWCA 200. Ms Milne does not seek to disturb those orders. 6. Because Dr Toben had been ordered to pay some of Ms Milne's costs, and may have incurred some costs himself, during the period before the other defendants brought their abuse of process application, I concluded that those other defendants' costs (other than those of the abuse of process application) should be assessed on the ordinary basis. 7. Ms Milne did not actively participate in the abuse of process application. She already has a costs order in her favour for the earlier application before me, which she does not seek to disturb. Just as the newspaper defendants could have brought their application earlier, it would have been open to Ms Milne to take the point on which the defendants were ultimately successful by her own application. In all the circumstances, I am not persuaded that a basis has been established for departing from the order I made on 3 December 2015. 8. For those reasons, I confirm the order that the plaintiff pay Ms Milne's costs as agreed or assessed on the ordinary basis. ***** Amendments 01 April 2016 - Typographical error on coversheet 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: 01 April 2016