Balzola v Federal Capital Press of Australia Pty Ltd (No. 4) [2016] NSWDC 267

District Court New South Wales

Medium Neutral Citation: Balzola v Federal Capital Press of Australia Pty Ltd (No. 4) [2016] NSWDC 267 Hearing dates: 24 October 2016 Date of orders: 24 October 2016 Decision date: 24 October 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant uplift access to the plaintiff to subpoena packets 8, 10, 11, 12, 13, 14, 15 and 17, to be returned to the court by 4:30pm today. (2) Grant uplift access to the defendants to subpoena packets 1, 3, 4, 5, 6, 7, 9, 16 and 18, to be returned to the court by 4:30pm today. (3) Note that in accordance with Gibson DCJ's request, the solicitors for the defendants have provided an affidavit of Mr Beattie sworn 24 October 2016, deposing to his conversation with Ms Liana Allan, which will be placed in a sealed envelope at the request of the plaintiff at the end of this application. (4) The plaintiff's notice of motion of 14 October 2016 dismissed. (5) The plaintiff is to pay the defendants' costs of the notice of motion, including the hearing today and the relevant portions of the hearing on Thursday 20 October 2016, on an indemnity basis. Catchwords: COSTS – indemnity costs – whether notice of application for indemnity costs required – whether malfeasance or misconduct required – whether plaintiff persisting with a hopeless application was sufficient basis for the making of the order – application for indemnity costs granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 61 Evidence Act 1995 (NSW), s 118 Uniform Civil Procedure Rules 2005 (NSW), r 42.5 Cases Cited: Colgate-Palmolive Co v Cussons Pty Ltd [1993] 46 FCR 225 Hearne v Street (2008) 235 CLR 125 Horseshoe Pastoral Co Pty Ltd v Smith [1995] NSWCA 200 Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 Oshlack v Richmond River Council (1998) 193 CLR 72 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Plaintiff: Robert Balzola First Defendant: Federal Capital Press of Australia Pty Ltd Second Defendant: Lisa Cox Representation: Counsel: Plaintiff: Mr R Rasmussen Defendants: Mrs L Barnett