Carolan v Fairfax Media Publications Pty Ltd (No 8)

[2017] NSWSC 1757

Supreme Court

New South Wales

Medium Neutral Citation:	Carolan v Fairfax Media Publications Pty Ltd (No 8) [2017] NSWSC 1757
Hearing dates:	Determined on the papers
Decision date:	14 December 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Subject to order (2), the plaintiff is to pay the defendants’ costs of the hearing on 2 September 2016; the defendants are to pay the plaintiff’s costs of preparation for the costs argument scheduled to be heard that day
Catchwords:	COSTS – usual rule that costs follow the event – where plaintiff succeeded in action for damages for defamation but failed on later application for injunctive relief – defendants seeking costs of later application – complaint of inordinate delay by the defendants in removing defamatory matter from the internet – where court had previously accepted that any delay was adequately explained
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Category:	Costs
Parties:	Sean Carolan (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Peter FitzSimons (second defendant)
Representation:	Counsel: K Smark SC with S Chrysanthou (plaintiff) ATS Dawson SC (defendants)   Solicitors: Kalantzis Lawyers (plaintiff) Banki Haddock Fiora (defendants)
File Number(s):	2014/245957

JUDGMENT

1. HER HONOUR: Mr Sean Carolan brought an action for defamation in respect of a series of articles in the Sydney Morning Herald. He was wholly successful in the principal claim and was awarded damages in the sum of $300,000: Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091.

2. In addition to claiming damages, Mr Carolan sought permanent injunctive relief. At the request of the parties, that aspect of the claim was heard separately, after the determination of the principal claim. I refused to grant an injunction: Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351. The basis on which that application was refused was summarised at [56] of the judgment as follows:

There are powerful reasons for refusing to grant the relief sought. I am not persuaded that permanent injunctions should ordinarily follow success in an action for defamation. As stated by White J in Hockey, some additional factor is required. In my view, the power to grant a perpetual injunction which impairs or takes away a person’s freedom of speech should be exercised only where it is reasonably necessary to address the risk or threat of repetition of the defamation.

3. The issue of risk or threat of repetition of the defamation had been addressed in an affidavit sworn by the solicitor for the defendants, Ms Norman. I summarised Ms Norman’s evidence at [39] of the judgment as follows:

As to the period after publication of the judgment, while the steps described by Ms Norman could have been taken more promptly, the difficulties she encountered in addressing those tasks are adequately explained. Ms Norman’s evidence has persuaded me that the defendants have ultimately reacted to the Court’s judgment in an appropriate manner, as should be expected of a respectable, mainstream media organisation. I am further satisfied that the defendants behaved reasonably in co-operating with the plaintiff’s legal representatives to identify all offending material for removal from Fairfax websites.

4. The plaintiff having been unsuccessful on that discrete application, the defendants seek an order for their costs of the argument on the basis of the usual rule that costs follow the event: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

5. The plaintiff submits that each party should pay his or its own costs of that argument. The basis for seeking an order other than the usual order was the contention that there was “inordinate delay” on the part of the defendants in removing the matters complained of (and articles with similar allegations about the plaintiff). I do not accept that submission. To a degree, it cavils with my assessment of the steps taken by the defendants as recorded in my earlier judgment at [39] (set out above). I am not persuaded that there is any warrant for departing from the usual order.

6. Separately, the plaintiff noted that, despite the fact that he had made an offer of compromise early in the proceedings (20 November 2014) for an amount of $159,000, the defendants did not consent to appropriate costs orders until the day on which the proceedings were listed for argument as to injunctions and costs, or perhaps late the day before. The plaintiff says that consent came weeks after the plaintiff's written submissions had been filed and after the plaintiff's counsel had prepared for the argument on costs. It was submitted that the plaintiff’s preparation insofar as it concerned the costs argument was wasted in circumstances where the defendants belatedly agreed to appropriate indemnity costs orders.

7. In those circumstances, the plaintiff submitted that, if the defendants are entitled to an award of costs for their success in relation to the injunction application, they should pay the plaintiff’s costs of the preparation for the costs argument, which they ultimately conceded. I accept that is the appropriate outcome.

8. For those reasons, I make the followings orders:

1. Subject to order (2), the plaintiff is to pay the defendants’ costs of the hearing on 2 September 2016;

2. the defendants are to pay the plaintiff’s costs of preparation for the costs argument scheduled to be heard that day.

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