Benhayon v Rockett (No 9) [2019] NSWSC 172

Supreme Court New South Wales

Medium Neutral Citation: Benhayon v Rockett (No 9) [2019] NSWSC 172 Hearing dates: 6 December 2018 Date of orders: 28 February 2019 Decision date: 28 February 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiff is to pay the defendant's costs of and incidental to the proceedings on an indemnity basis;

(2) The defendant's application for leave for collateral use of the documents identified in paragraph [49] of this judgment is dismissed, each party to pay its own costs of that application; and

(3) The matter is listed at 9:30am on Wednesday 6 March 2019 (or other such date and time as agreed by the parties, and notified to my Associate), for submissions to be made as to why I should not refer Universal Law to the Office of the Legal Services Commissioner for investigation in respect of the conduct raised in paragraphs [29] to [36] of this judgment. Catchwords: COSTS – defamation – actions for defamation – indemnity costs – where the defendant seeks indemnity costs – where the defendant early in the litigation made an offer of settlement in writing – where at the time of the offer of settlement, there was no Defence filed – where the plaintiff unreasonably failed to accept a settlement offer made by the defendant – where the counterproposal amounts to a relevant matter to be considered in exercising the discretion to order indemnity costs

PROCEDURE – discovery of documents not admitted into evidence – use of documents – where defendant seeks leave to use documents obtained in present proceedings – use of documents obtained for collateral purpose of making complaints to regulatory authorities about the plaintiff – whether leave should be granted Legislation Cited: Defamation Act 2005 (NSW) ss 30, 40 Uniform Civil Procedure Rules 2005 (NSW) rr 21.7, 42.1 Cases Cited: Calderbank v Calderbank [1976] 3 All ER 333 Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Harman v Secretary of State for the Home Department [1983] AC 280 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Category: Costs Parties: Serge Isaac Benhayon (Plaintiff) Esther Mary Rockett (Defendant) Representation: Counsel: N Olson (Plaintiff) T Molomby SC (Defendant)