Kazal v Fairfax Media Ltd [2017] NSWSC 1070

Supreme Court New South Wales

Medium Neutral Citation: Kazal v Fairfax Media Ltd [2017] NSWSC 1070 Hearing dates: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Common Law Before: McCallum J Decision: Each party to bear his or its own costs of and occasioned by the plaintiff's notice of motion filed 18 July 2017 Catchwords: COSTS – where interlocutory application resolved save as to costs – proper approach – undesirability of undertaking an analysis of the resolved contest in such detail as to remove the benefit of the settlement Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.21(1)(a) Category: Procedural and other rulings Parties: Tony Kazal (plaintiff) Fairfax Media Ltd (defendant) Representation: Counsel: C Dibb (plaintiff) PW Gray SC (defendant)

Solicitors: Mitry Lawyers (plaintiff) Banki Haddock Fiora (defendant) File Number(s): 2016/159179 Publication restriction: None

Judgment 1. HER HONOUR: In these proceedings for defamation the defendant has filed a notice of motion seeking security for its costs. That application is due to be heard in the Defamation List. 2. The basis for the application is two-fold. First, the application rests on r 42.21(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW), which provides as a basis for such an application "that a plaintiff is ordinarily resident outside Australia". Secondly, the application invokes the Court's inherent jurisdiction and will be based on an alleged hate campaign maintained by the plaintiff against Mr Baker, a journalist who, although not a party to the proceedings, has an association with the proceedings, being employed by the defendant. 3. In aid of the application, the defendant's lawyers began by writing to the plaintiff's lawyers seeking security. The plaintiff's lawyers responded as follows: "We are instructed that our client primarily resides and works in the United Arab Emirates." 1. The letter went on to note that the plaintiff regularly visits Australia and said it is "...quite simply not a case being commenced by a person who resides permanently outside the jurisdiction". 2. As submitted by Mr Gray on behalf of the defendant, the language of the letter was, to say the least, enigmatic, carefully sailing around the words of the rule. However, in fairness to the plaintiff, it must be noted that the letter did not deny the plaintiff was ordinarily resident outside Australia and indeed went a considerable way, in my view, to acknowledging that he does. 3. In any event the defendant, to support the motion for security, proceeded to issue a subpoena and a notice to produce. The terms of those documents were quite broad and production was resisted by the plaintiff. 4. The plaintiff ultimately filed a notice of motion seeking to have the subpoena and the notice to produce varied. That motion came before me for hearing in the defamation list last Friday but has now resolved with short minutes of consent orders agreed today. The only matter remaining in dispute is the question as to who should pay the costs of the plaintiff's motion to have the subpoena and notice to produce varied. 5. It frequently occurs, particularly in a practice list such as the Defamation List, that parties agree to resolve an interlocutory application but are unable to agree as to costs. When that occurs, it places the Court in the difficult position of having to attempt to discern the competing merits of an argument the need to determine which has otherwise been obviated by the parties' partial agreement. There is some authority dealing with the proper approach in that event. One thing that is clear is that the Court is not required or expected to determine the whole of the argument as if it remained contested, for obvious reasons. To do so would be a waste of the Court's time and would destroy the benefit of the agreement. The required approach, in short, is for the Court to do the best it can to discern where the merits lie without wasting so much time as to have effectively heard the whole application. 6. In advance of the argument last week I had an opportunity to read the submissions of the parties and to consider the affidavit relied upon by the defendant in support of the underlying motion for security, some of the correspondence in respect of which is relevant to the present application. It seems to me that, while the position of each party was not unreasonable, each might have taken a more conciliatory approach. 7. On the defendant's part, with no disrespect to the very experienced and able lawyers at that end of the bar table, the approach that has been taken might be thought to represent something of a "Rolls-Royce" approach to the litigation. Some issues might, had careful attention been given to the issue of proportionality of costs to the interest at stake, have been left to lie where they did on the correspondence. In particular, I think the defendant might have been content to come to Court on the strength of the plaintiff's concession that he primarily resides and works in the United Arab Emirates. In my view, that was enough to trigger the application of the rule as to security for costs while maintaining a contest as to whether security should be ordered in the circumstances of this case. Certainly, I do not think there was any warrant for going back 20 years in relation the plaintiff's migration history, as was sought, notwithstanding the submission put on the defendant's behalf that that approach simply reacted to a statement the plaintiff had made. 8. Conversely, the plaintiff has now made a number of admissions in the short minutes which might have been made at an earlier point in time. 9. Doing the best I can, I think the fairest result is for each party to bear his or its own costs of and occasioned by the plaintiff's notice of motion filed 18 July 2017.