Carolan v Fairfax Media Publications Pty Ltd (No 8)

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.

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:

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:

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).

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.

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.

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.

For those reasons, I make the followings orders: