Minus v Harbour Radio Pty Ltd (No 2) [2017] NSWSC 585

Supreme Court New South Wales

Medium Neutral Citation: Minus v Harbour Radio Pty Ltd (No 2) [2017] NSWSC 585 Hearing dates: Application determined on the papers Decision date: 12 May 2017 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff to pay the costs thrown away by reason of the filing of the amended statement of claim including the costs of the first notice of objections and the listing on 18 November 2016 Plaintiff to pay half the defendants' costs of the argument determined on 9 March 2017 Catchwords: COSTS – where plaintiff sought to have first listing of defamation action postponed several times – liability for costs of listing Category: Costs Parties: Derek Michael Minus (plaintiff) Harbour Radio Pty Ltd (first defendant) Alan Jones (second defendant) Representation: Counsel: RA Jedrzejczyk (plaintiff) M Richardson (defendants)

Solicitors: Corrs Chambers Westgarth (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2016/176044

Judgment 1. HER HONOUR: In these proceedings, the Court gave rulings on 9 March 2017 in respect of the defendants' objections to the form of a proposed amended statement of claim served by the plaintiff: Minus v Harbour Radio Pty Ltd [2017] NSWSC 191. After that judgment had been prepared but before it was published, the plaintiff sought leave to put on written submissions as to costs. This judgment determines the matters raised in those submissions.

Costs thrown away 1. The defendants seek their costs thrown away by reason of the amendment to the statement of claim. The precise order sought is: That the plaintiff pay the costs thrown away by reason of the filing of the amended statement of claim, such costs including the first notice of objections and the listing on 18 November 2016. 1. The plaintiff accepts that he should pay the costs thrown away but resists the inclusion of the costs of the listing on 18 November 2016. 2. Proceedings for defamation in this Court are governed by the Defamation List Practice Note SC CL 4. Clause 7 of the Practice Note records that "the Defamation List is conducted with the aim of achieving the just, quick and cheap resolution of the real issues in the proceedings and promoting the objects of the Defamation Act 2005 (NSW)". The Practice Note contemplates that proceedings in the Defamation List should ordinarily come before the Court on only two occasions. The Practice Note communicates the Court's expectations as to the steps the parties ought to have taken before each such listing and the matters that will be determined at the listing. 3. The plaintiff's resistance to the proposition that he should bear the costs of the earlier listing ignores those expectations. The proceedings were commenced by statement of claim filed on 8 June 2016 and allocated a first listing on 22 July 2016. That date was vacated by consent and the first listing was rescheduled to 9 September 2016. In anticipation of that listing, the defendants provided a detailed notice of their objections to the form of the statement of claim, as required under clause 12(a) of the Practice Note. In the meantime, the solicitor on the record for the plaintiff ceased to act. The listing on 9 September 2016 was accordingly also vacated, by consent but at the request of the plaintiff. The first listing was then fixed for 18 November 2016. 4. Shortly before the listing on 18 November 2016, my Associate wrote to the parties to inquire whether the matter was ready to proceed and, if so, requesting them to provide any relevant material. The provision of material in advance of argument is a task to which parties to proceedings in this List should attend in any event, without prompting. In pursuing parties for information, my Associate takes on a considerable administrative burden beyond her due. She does so in order to give me a sporting chance of determining matters for argument within the day on which they are listed. 5. In response to my Associate's request, the plaintiff again sought to have the listing vacated. On that occasion, the defendants indicated that they neither consented to nor opposed the application (whereas, on the two previous occasions, they had consented). In the absence of affirmative consent from the defendants, I declined to vacate the listing. 6. The plaintiff submits that his application to vacate the listing was reasonable in the circumstances explained in the correspondence. So much may be accepted, but that is not the point. The simple fact is that a plaintiff, having commenced proceedings, is expected to prosecute his claim in accordance with the Practice Note. There will of course be occasions on which that cannot occur, for good reason. But parties should not expect the Court to vacate a listing that has become inconvenient. Proceedings in the Court are ordinarily conducted in open court, in the presence of the public. The making of orders in chambers by consent is often expedient and saves costs but is not a matter of right. The defendants, for their part, responded appropriately in declining to consent to a third vacation of the first listing. It is not a question of punishing the plaintiff but simply a case of his having to bear the costs of an adjournment sought by him. In my view, the order for costs thrown away should include the costs of the listing on 18 November 2016.