District Court New South Wales Medium Neutral Citation: Farrow v Nationwide News Pty Ltd (No. 2) [2017] NSWDC 30 Hearing dates: 2 March 2017 Date of orders: 02 March 2017 Decision date: 02 March 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The plaintiff is to pay the defendant's costs of the notice of motion and of the proceedings. Catchwords: COSTS – application for costs by defendant after plaintiff's application for leave to commence defamation proceedings under ss 4 and 7 of the Felons (Civil Proceedings) Act 1981 (NSW) is rejected – whether the defendant was a party to the application – costs order made Legislation Cited: Defamation Act 2005 (NSW), ss 23 and 40 Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 7 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Clark v State of New South Wales (No 2) [2016] NSWSC 1443 Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 Patsalis v New South Wales (Re Costs) [2012] NSWSC 337 Patsalis v New South Wales (2012) 81 NSWLR 742 Re Condor Blanco Mines Ltd (No 3) [2017] NSWSC 65 Yu v Cao (2015) 91 NSWLR 190 Category: Costs Parties: Plaintiff: Simone Farrow Defendant: Nationwide News Pty Ltd Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms L Mullins (solicitor) Solicitors: Plaintiff: Sanford Legal Defendant: News Limited File Number(s): 2016/333403 Publication restriction: None Judgment 1. The plaintiff, a person who is in custody as a result of conviction for a serious indictable offence, sought leave to sue pursuant to s 4 Felons (Civil Proceedings) Act 1981 (NSW) to commence and continue proceedings 2016/333403 for defamation for an online and print article entitled "Drugs, sex and an officer" and "Prison guard fell for a Pet". The matters complained of described what was called the "extraordinary" background to the plaintiff's sentencing for a non-parole period of six and a half years in jail for a drug importation offence and her asserted "secret sexual relationship" (paragraph 5) with a prison guard in order to obtain access to an unmonitored telephone while the sentencing was being heard in the District Court of New South Wales. I refused to grant leave to the plaintiff: Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 and reserved the issue of costs. 2. The defendant brings an application for costs pursuant to r 42.1 Uniform Civil Procedure Rules 2005 (NSW) and s 40 Defamation Act 2005 (NSW). This is opposed by the plaintiff on the following bases: 1. The defendant has no right to claim costs because it is a non-party and has no standing to seek a costs order; 2. The defendant appeared only for the purpose of assisting the court and is not entitled to costs on that basis. Is the defendant a party to proceedings? 1. Leave is required under ss 4 and 7 of the Felons (Civil Proceedings) Act 1981 (NSW). Does that mean that the purported defendant is not a party until the leave to commence proceedings was granted? 2. Applications for leave to commence proceedings are not uncommon in relation to, for example, leave sought under s 23 Defamation Act 2005 (NSW). However, the defendant has a right of appearance in such applications, and that is not the case here. 3. Ms Mullins submits her client is in fact a party, and points to the service on her client of the substantive proceedings and the notice of motion as well as the agreed timetable for the filing of submissions. A notice of appearance was filed. Finally, and most importantly, leave to appear was granted in the course of the parties' submissions before I reserved on judgment. In those circumstances, Ms Mullins submitted, the defendant was in fact a party to the litigation and a costs order could be made on that basis. 4. Costs orders have been made in favour of the putative defendant in other applications under this legislation. Ms Mullins pointed to costs orders in favour of the defendant being opposed but nevertheless made in Patsalis v New South Wales (Re Costs) [2012] NSWSC 337; Patsalis v New South Wales (2012) 81 NSWLR 742 at [102] and Clark v State of New South Wales (No 2) [2016] NSWSC 1443 at [14]-[17]. 5. I am satisfied that the defendant was in fact a party. I should, however, briefly note Mr Rasmussen's submission that the defendant was a non-party and that an order for costs in favour of a non-party to proceedings should only be made in exceptional circumstances (Yu v Cao (2015) 91 NSWLR 190).The principles relevant to the making of costs orders in favour of, or against, non-parties are set out in detail by Barrett AJA in Re Condor Blanco Mines Ltd (No 3) [2017] NSWSC 65. 6. However, the defendant in these proceedings is not a "non-party" of the same kind as the non-party the subject of orders in Yu v Cao. Even if the fact that the defendant was granted leave to appear, did not make the defendant a party, the defendant was not a stranger to the litigation. 7. Mr Rasmussen's submission that the defendant had not made submissions on its own behalf but to help the court was pressed only faintly. While Ms Mullins' submissions were indeed helpful to the court, their purpose was to assist her client in adversarial litigation, not in some amicus curiae capacity. Orders 1. The plaintiff is to pay the defendant's costs of the notice of motion and of the proceedings. ********** 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: 03 March 2017