Supreme Court New South Wales Medium Neutral Citation: Cheikho v Nationwide News Pty Ltd (No 6) [2016] NSWSC 225 Hearing dates: Application for costs determined on the papers Date of orders: 11 March 2016 Decision date: 11 March 2016 Jurisdiction: Common Law Before: McCallum J Decision: Defendant to pay two-thirds of the plaintiff's costs of the proceedings Catchwords: COSTS – where plaintiff succeeded on one of four allegedly defamatory publications – overlap in the evidence between the issues raised in respect of each publication – consideration of appropriate costs order Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Commonwealth v Gretton [2008] NSWCA 117 Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 Category: Costs Parties: Hamza Cheikho (Plaintiff) Nationwide News Pty Ltd (Defendant) Representation: Counsel: T Molomby SC with R Rasmussen (Plaintiff) T Blackburn SC with L Barnett (Defendant) Solicitors: Lighthouse Law Group Pty Ltd (Plaintiff) Ashurst Australia Lawyers (Defendant) File Number(s): 2013/280743 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation in respect of four articles published in The Daily Telegraph. The case was tried with a jury over eight days last year. The effect of the jury's verdict was that, subject to one further issue, Mr Cheikho was successful in respect of one of the four articles sued on. 2. I then determined the remaining issue (whether the article on which Mr Cheikho had succeeded before the jury was published on an occasion of qualified privilege). I determined that issue in favour of Mr Cheikho and awarded him damages in the sum of $100,000. 3. This judgment determines the costs of the proceedings. 4. The principles relating to the determination of costs are well known and may be summarised briefly. Costs ordinarily follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). It is open to the Court, where multiple issues have been litigated, to award a successful party only part of his costs. Costs should be paid "in a way that is fair, having regard to what the Court considers to be the responsibility of each party for the incurring of the costs": Commonwealth v Gretton [2008] NSWCA 117 a [121] per Hodgson JA, Mason P agreeing at [1]. 5. The plaintiff submitted that almost all of the evidence was directed to the issues raised by the cause of action in respect of first publication (as well as being also relevant to the other publications). Specifically, it was submitted that all but eight pages of the plaintiff's evidence-in-chief, all of the lengthy cross-examination and all of the re-examination related to the first article, as did all of the evidence called by the defendant. It was submitted that the parts of the trial directed exclusively to the second, third and fourth articles were "quite small". Mr Molomby SC, who appears with Mr Rasmussen for Mr Cheikho, submitted that the same is "surely true of the preparation, whose focus must necessarily have been the events of the protest". On that basis, it was submitted that the plaintiff should have the whole of his costs, notwithstanding the mixed result. 6. The defendant disputed the contention that almost all of the evidence was directed to the first article. It was submitted that a significant portion of the trial was dedicated to cross-examination of the plaintiff in respect of his Facebook posts and a statement he made to an ABC journalist. That evidence was directed to imputations alleged to have been conveyed by the articles on which Mr Cheikho was ultimately unsuccessful. 7. Neither party attempted a detailed analysis of the transcript or the evidence to provide a differentiation between the issues on which the plaintiff lost and won. The defendant relied in that respect on the observation of White J in Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 at [116]. His Honour said: In my opinion, analyses of the kind carried out by the solicitor should not be encouraged: they constitute an undue expense; are of relatively little assistance in an exercise which is inherently evaluative in nature; and are liable to produce, as it has in this case, a distorted impression. 1. I would respectfully agree with those remarks. 2. The defendant submitted that, having succeeded on only one of four causes of action, the plaintiff ought not be entitled to any more than 25% of his costs. In my assessment, an arithmetic approach based on the number of causes of action does not accurately reflect the fair responsibility of the parties for costs in this case. Some evaluation must be made of the time spent on different issues. 3. The defendant then submitted that, in all the circumstances, an appropriate order would be that the defendant pay 20% of the plaintiff's costs. That does not reflect my assessment of the amount of evidence and likely preparation directed to the first matter complained of and would, in my view, not be a fair allocation of the defendant's responsibility for the plaintiff's costs. 4. I accept that the plaintiff should not have all his costs. I am persuaded that some differentiation is appropriate, as was determined in Hockey. However, for the reasons addressed by Mr Molomby in his written submissions, I accept that this is a very different case from Hockey. In particular, the publication on which the plaintiff has succeeded was very much front and centre of the case. The protest was, in my view, the primary focus of the case. 5. Based on my observations of the course of the proceedings (having presided over the trial and also managed the proceedings in the defamation list before the trial), I consider that the appropriate order is that the defendant pay two-thirds of the plaintiff's costs as agreed or assessed on the ordinary basis. 6. There is one further issue as to which, regrettably, the parties are in dispute which is the appropriate rate of pre-judgment interest. The plaintiff submitted that interest should be awarded from the date of publication until the date of judgment at a rate of 3%; the defendant submitted that the rate should be 2%. Neither party provided any basis for those respective contentions other than assertion. 7. Section 100 of the Civil Procedure Act 2005 (NSW) provides that, in proceedings for the recovery of money (which includes proceedings for damages), the Court may include interest "to be calculated at such rate as the Court thinks fit" on the whole or any part of the money and for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. Rule 6.12(8) of the UCPR provides some guidance as to the rate the Court should allow. I have also had regard to a table published by the Federal Court which provides relevant information. I am satisfied that the rate of 3% claimed by the plaintiff is appropriate. 8. I direct the plaintiff to bring in an appropriate calculation within seven days. ********** 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: 15 March 2016