Kostov v Nationwide News Pty Ltd (No.1)

1. [1]

   On 15 March 2018 an article was published in the Daily Telegraph and online concerning a reference the plaintiff had written for a person with whom she had been in a relationship, Christian Iral. Mr Iral had pleaded guilty in the District Court to supplying an undercover police officer with 17 grams of cocaine. In the Daily Telegraph the article was headlined: “Hedging a bet: Fund Director’s plea for coke-dealing boyfriend”. The online article was headlined: “Cocaine dealer jailed as girlfriend director writes heartfelt letter to judge”.

2. [2]

   The plaintiff commenced proceedings (2018/83736) in the Equity Division against Nationwide News Pty Ltd (the First Equity Proceedings) in which she sought ex parte relief for the removal of the online article. Those proceedings came before Kunc J on 16 March 2018, and his Honour refused the interlocutory relief. The plaintiff filed a notice of motion to set aside Kunc J’s orders. That motion was dismissed by Hallen J on 19 March 2018.

3. [3]

   On 19 March 2018 the plaintiff filed proceedings (2018/87917) in the Defamation List of the Common Law Division (the Defamation Proceedings) claiming damages against Nationwide News for the publication of the articles. The loss and damage said to have been suffered by the plaintiff was set out in paragraph 29 of the amended statement of claim filed 16 April 2018. Paragraph 29 read as follows:

4. [4]

   By an email dated 26 April 2018, the plaintiff accepted that she ought to have commenced the First Equity Proceedings in the Defamation List of the Common Law Division.

5. [5]

   On 8 May 2018 Registrar Walton in the Equity Division ordered that the First Equity Proceedings be transferred to the Defamation List and be heard concurrently with the Defamation Proceedings. The pleadings in the Defamation Proceedings were ordered to be the pleadings in support of the First Equity Proceedings.

6. [6]

   On 8 June 2018, after a contested hearing about whether the plaintiff’s imputations were reasonably capable of arising and whether the article met the threshold of seriousness, McCallum J dismissed the Defamation Proceedings on both bases: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858.

7. [7]

   On 20 July 2018 McCallum J ordered that the summons in the First Equity Proceedings be dismissed. Her Honour ordered that the plaintiff was to pay the defendant’s costs of the First Equity Proceedings.

8. [8]

   On 15 June 2018 the plaintiff filed a Notice of Intention to Appeal from the judgment of McCallum J in the Defamation proceedings. Pursuant to UCPR r 51.9 an applicant who has filed a Notice of intention to Appeal must file a Notice of Appeal within 3 months of the material date, which here was 8 June 2018. Accordingly, the Notice of Appeal ought to have been filed by 8 September 2018.

9. [9]

   The plaintiff sent a letter to the Court of Appeal dated 7 September saying:

10. [10]

    On 13 August 2018 the plaintiff filed a summons (2018/248745) in the Equity Division (the Second Equity Proceedings) seeking the following relief against Nationwide News Pty Ltd:

11. [11]

    The plaintiff brought those proceedings before Rein J in the Equity duty list on an ex parte basis. On 16 August 2018 Rein J refused the plaintiff’s application for ex parte relief: Adriana Kostov v Nationwide News Pty Limited [2018] NSWSC 1289. In his Honour’s judgment Rein J noted at [2]

12. [12]

    Justice Rein said further:

13. [13]

    On 22 August 2018 the plaintiff filed a statement of claim in the Common Law Division and indicated that the matter was in the Personal Injury List (2018/258386) (the Personal Injury Proceedings). I note that there is no list called the Personal Injury List. She named Nationwide News Pty Ltd as the first defendant, Newscorp (United States) as second defendant, and Alphabet Inc t/a Google LLC as third defendant.

14. [14]

    On 20 September 2018 she filed an amended statement of claim in those proceedings claiming damages for loss and injury suffered, aggravated damages, an “order ceasing the publication from further publication”, and costs. The pleading made reference to the publication of the article and her repeated requests that the article be taken down from the internet. The amended statement of claim went on to plead that the publications have caused her personal injury which she detailed as emotional injury, psychiatric injury (nervous shock) and physical injury. She also appeared to base her claim on a breach of privacy which she claimed had caused her harm, damage and loss.

15. [15]

    On 22 August 2018 the defendant in the Second Equity Proceedings filed a notice of motion seeking that the summons be summarily dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW), that the plaintiff pay the defendant’s costs on an indemnity basis and:

16. [16]

    On 24 September 2018 the first and second defendants filed a notice of motion seeking summary dismissal of the Personal Injury Proceedings pursuant to UCPR r 13.4 and for the following orders:

17. [17]

    On 27 August 2018 the Second Equity Proceedings came before Registrar Walton. Registrar Walton fixed the defendant’s notice of motion filed in those proceedings before the Applications List Judge in the Equity Division on 11 September 2018. The Registrar made this order:

18. [18]

    Those proceedings came before Rees J on 11 September 2018. Her Honour noted that there was no appearance for the plaintiff. Her Honour ordered that the proceedings be transferred to the Common Law Division to run in the list with the Personal Injury Proceedings.

The hearing of the motions

1. [19]

   Both the Personal Injury Proceedings and the Second Equity Proceedings came before Registrar Bradford in the Common Law Division on 11 October 2018. The Registrar fixed for hearing the notices of motion filed in each of those proceedings for summary dismissal on 30 October 2018. In the Second Equity Proceedings the Registrar noted that the plaintiff had filed submissions on 10 September 2018. In the Personal Injury Proceedings he ordered that the plaintiff was to file any written submissions that were intended to be relied upon at the hearing of the motions by 23 October 2018.

2. [20]

   In the Second Equity Proceedings the Registrar gave leave to the defendant to file an amended notice of motion. That amended notice of motion was filed on 19 October 2018. It contained two additional prayers for relief as follows:

3. [21]

   On Friday, 26 October 2018 I directed my Associate to email the plaintiff requiring her to forward her submissions in both motions to my Associate as soon as possible on that day. In reply, the plaintiff requested that the hearing be adjourned, and that only directions be made on 30 October. My Associate, at my direction, informed the plaintiff that the motions remained listed for hearing.

4. [22]

   That resulted in an email from the plaintiff on Friday afternoon requesting the matter be listed at 2pm on Monday, 29 October so that the plaintiff could seek an adjournment of the hearing of the motions the following day. The parties were informed first thing Monday, 29 October that the matters were listed at 2:00pm on that day. At 2:00pm there was no appearance for the plaintiff. Instead, at 1:59pm my Associate received an email from the plaintiff requesting to appear by telephone. Some six minutes earlier the plaintiff by email forwarded to my Associate what were said to be her written submissions, although she described them as brief and requested a three week adjournment so that she could address all matters correctly.

5. [23]

   I declined to permit the plaintiff to appear by telephone. In the absence of an appearance by the plaintiff, her foreshadowed application to adjourn the hearing was refused and costs were reserved.

6. [24]

   When informed of what had transpired, the plaintiff forwarded a number of emails to my Associate requesting amongst other things permission to appear by telephone on 30 October. No adequate reason was put forward for that request other than a statement that the plaintiff could not appear in person to argue a motion for which she was not properly prepared. I declined to permit the plaintiff to appear by telephone.

7. [25]

   When the motions were called for hearing on 30 October, Mr P Lonergan of counsel appeared for the plaintiff. He informed me that his instructions were limited to seeking an adjournment of the hearing of the motions for a week to give the plaintiff time to address properly the issues raised by the motions. There was no evidence adduced on the plaintiff’s behalf to explain why she had not prepared for the hearing prior to that time. I refused the adjournment. However, because part of the claim being made was that the plaintiff should be found guilty of contempt, I indicated that, with respect to that aspect of the motion, I would give the plaintiff a further period of time in which to forward written submissions to answer the contempt charge. I reserved my decision in the matter.

8. [26]

   I refused the adjournment for the following reasons. The motion in the Second Equity Proceedings was filed on 22 August 2018. The motion in the Personal Injury Proceedings was filed on 24 September 2018. Those dates were, respectively more than two months and one month prior to the date fixed for hearing those motions. The motions both sought as their principal relief the dismissal of the proceedings pursuant to UCPR r 13.4. The motion in the Second Equity Proceedings has been fixed for hearing on 11 September. It did not proceed, seemingly, because the plaintiff failed to appear.

9. [27]

   The Common Law Registrar noted, on 11 October, that the plaintiff had filed submissions in relation to the motion in the Second Equity proceedings on 10 September. She was given until 23 October to file submissions in relation to the motion in the Personal Injury Proceedings. The only additional relief sought in those proceedings was for an order that the plaintiff not commence any further proceedings until costs were paid in the four proceedings she had already commenced.

10. [28]

    In all of the circumstances, I considered that the plaintiff had had ample time to file and serve her submissions. The only material provided by the plaintiff by way of explanation for not preparing her submissions and for seeking an adjournment was that she was in hospital from 13 to 14 October. That material was a copy of a document entitled “ED Discharge Referral” from Royal Prince Alfred Hospital. The attendance date was said to be “14/10/2018”. That document was sent under cover of an email forwarded to my Associate. Since the plaintiff did not appear on 29 October at the time she requested I list the proceedings, and since she was not present in court on 30 October when her counsel appeared, there was no opportunity for enquiries to be made about how her time in hospital prevented her either from preparing her submissions or from attending at court to make submissions on the motions. The High Court made clear in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [103] the importance of an explanation where a party seeks the exercise of discretion, for example, to amend or adjourn proceedings.

11. [29]

    The plaintiff has a law degree, and appears to work for a solicitor in some sort of capacity as a legal clerk. She would understand the need to comply with court timetables, and that parties are expected to proceed on the day matters are fixed for hearing. The extension of time in relation to the contempt charge was an indulgence because of the seriousness of a contempt charge.

12. [30]

    Despite my otherwise refusing to adjourn the motions, Mr Lonergan remained in court at the bar table for the duration of the hearing of the motions.

13. [31]

    The plaintiff filed written submissions in relation to the contempt charge by the stipulated date, 16 November 2018. I listed the proceedings for further mention on 23 November 2018. The plaintiff appeared on that occasion in person, and I permitted her to make whatever further submissions she wished to make on the contempt issue. I then again reserved my decision.

14. [32]

    Subsequent to reserving my decision, I became aware that other contempt proceedings against the plaintiff, decided at first instance against her, had been argued in the Court of Appeal with the decision on that appeal reserved by that court. I relisted the present proceedings, and informed the parties that I considered it prudent to await the Court of Appeal’s decision before determining that part of the present motion in the Second Equity Proceedings dealing with contempt. Accordingly, this judgment deals only with the other relief sought in that notice of motion, and the relief sought in the notice of motion in the Personal Injury Proceedings.

The plaintiff’s bankruptcy

1. [33]

   A preliminary issue arose from the fact that an affidavit of the defendants’ solicitor sworn 29 October 2018 disclosed that the plaintiff’s estate was sequestrated by an order of the Federal Court on 18 July 2018. Section 58(3) of the Bankruptcy Act 1966 (Cth) provides:

2. [34]

   The section has two potential implications for the present motions. First, the defendants seek a costs order which would involve determination by the Court of the amount of costs payable. Secondly, it must be determined whether advancing the motions is taking any fresh step in proceedings which the subsection proscribes.

3. [35]

   The latter question may be readily resolved. Paragraph (b) is not engaged because the proceedings brought by the plaintiff, in which the present motions have been filed, are not legal proceedings “in respect of a provable debt”: Re McCauley; Ex parte Fraser (1995) 61 FCR 251 at 254. The proceedings themselves involve a personal injury or wrong done to the bankrupt within the meaning of s 60(4) of the Bankruptcy Act: Moss v Eaglestone (2011) 83 NSWLR 476 at [8].

4. [36]

   The pursuit of costs in the motions is a different matter. It is governed by paragraph (a). However, the obtaining of a costs order itself will not contravene that paragraph. In Fraser v Commissioner of Taxation (1996) 69 FCR 99 Beaumont J (Black CJ and Tamberlin J agreeing) said at 111:

5. [37]

   The defendants are not, therefore, precluded from seeking and obtaining a costs order. They may, however, not enforce that order.

Summary dismissal

1. [38]

   The defendants submitted that the matters in each of the Second Equity Proceedings and the Personal Injury Proceedings have already been determined by the judgment of McCallum J. The plaintiff should not be entitled to maintain those proceedings because to do so would offend the principles of res judicata, issue estoppel and Anshun estoppel, and amounts to an abuse of process.

2. [39]

   After the plaintiff filed her amended statement of claim in the Defamation Proceedings, the defendant wrote setting out the objections to the amended statement of claim as required by the Defamation Practice Note. When dealing with the issue of damages the solicitors for the defendant objected on the following basis:

3. [40]

   The plaintiff responded on 11 May 2018. In relation to damages she said the following:

4. [41]

   Damages for personal injury caused by the publication of defamatory material may be claimed in a defamation action: Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 45. If such damages are claimed a plaintiff is required to comply with UCPR r 15.12 by filing a statement of particulars: Styles v Clayton Utz (No.3) [2011] NSWSC 1452 at [221]-[222].

5. [42]

   In the Personal Injury Proceedings the plaintiff pleads the publication of the article and that she has repeatedly requested that the online article be removed by the third defendant. She pleads that the publication both in the print edition and online caused her personal injury. Paragraph 14 pleads against the second defendant as follows:

6. [43]

   She then pleads the injury and particulars of injury as follows:

7. [44]

   In the statement of particulars filed in those proceedings the plaintiff again lists both her physical and psychological injuries said to have been caused by the publications.

8. [45]

   In Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 the High Court set out principles concerning res judicata, issue estoppel, Anshun estoppel and abuse of process as follows:

9. [46]

   In my opinion, the claim made by the plaintiff in the Defamation Proceedings, that the publication of the article caused her personal injury, was determined adversely to her in the judgment of McCallum J. That was a final judgment that quelled the controversy between the plaintiff and the first defendant. The rights and obligations as between the parties merged in that judgment. There is a res judicata as a result of that judgment. The bringing of the Personal Injury Proceedings in that way constitutes an abuse of process because it raises the same controversy for determination again. The final judgment of McCallum J may not be reopened except as is provided by the appellate system. That is part of the principle of finality: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]-[35].

10. [47]

    In circumstances where a res judicata or issue estoppel is found, a claim in breach of those principles may be dismissed summarily: Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502 at 510.

11. [48]

    The plaintiff cannot step around the dismissal of the Defamation Proceedings by an argument that she now claims on a different cause of action such as negligence. In Gacic v John Fairfax Publicatons Pty Limited [2005] NSWSC 1210, the plaintiffs sued for defamation and injurious falsehood on the basis of an unfavourable restaurant review published in a newspaper. Those proceedings went to trial and the claim failed completely. The plaintiff then pleaded a claim in negligence and contract based on the same publication. The defendant applied to strike out the further claim.

12. [49]

    Justice James made reference to what the High Court said in Sullivan v Moody (2001) 207 CLR 562; (2001) HCA 59 at [53]-[55]. His Honour then said:

13. [50]

    His Honour made reference to some cases in a variety of jurisdictions which suggested that the law of negligence had no role to play where publication of material was alleged. His Honour then went on to say:

14. [51]

    The cause or causes of action upon which the plaintiff relies in the Personal Injury Proceedings are not pleaded nor are they easy to discern. The plaintiff has entitled the proceedings in the “Personal Injury List”. Most but not all personal injury proceedings are based on trespass, negligence or some breach of statutory duty. However, it is apparent from the authorities to which I have already referred that damages for personal injury may be claimed in defamation proceedings.

15. [52]

    The plaintiff does not assert that the defendants owed her a duty of care or that the defendants breached any such duty resulting in injury to her. It seems doubtful in the light of what appears in Sullivan v Moody and Tame v State of NSW (2002) 211 CLR 317; [2002] HCA 35 that such a pleading would be maintainable. Further, those cases and Gacic mean that the plaintiff does not have a cause of action in negligence where personal injury is claimed as a result of a publication.

16. [53]

    Those matters lead to the conclusion that it is likely the cause of action relied upon in the Personal Injury Proceedings is in fact a claim for damages for defamation. If that is so, the principle of res judicata operates because of the judgment of McCallum J in the Defamation Proceedings. Those proceedings were dismissed after a hearing. There is a judgment in favour of the first defendant. The rights and obligations of the parties arising from the publication of the article have merged in that judgment. Those rights said by the plaintiff to have been infringed in the Defamation Proceedings included damages for personal injury in the same way as that claim is made in the Personal Injury Proceedings.

17. [54]

    If the cause of action in the Personal Injury Proceedings is, despite the inadequate pleading, a claim in negligence, such a claim must fail because the law does not recognise a cause of action in negligence from the publication of material said to cause injury and damage.

18. [55]

    In my opinion, as far as the claim against Nationwide News is concerned there is a res judicata arising from the judgment of McCallum J of 8 June 2018.

19. [56]

    As far as the second defendant “New Corp (United States)” (sic) is concerned, the plaintiff alleges that it is a parent company of the first defendant and is aware of the publication and the continuing publication and the loss and harm suffered as a result. Simply being a parent company and being aware of the publication together with the loss and harm provides no basis for a cause of action against the second defendant. The plaintiff pleads, however, that both the first and second defendants are publishers of the publication. Justice McCallum in her judgment of 8 June 2018 found that the publisher was the first defendant, Nationwide News Pty Ltd. By virtue of McCallum J’s finding that Nationwide News was the publisher, there is an issue estoppel against the plaintiff, whether by application of the extended principle in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 or otherwise.

20. [57]

    On the other hand, if, in some manner, the second defendant was also the publisher, that is clearly a claim which ought to have been made in the Defamation Proceedings. An Anshun estoppel will arise because a claim against the second defendant was so relevant to the subject matter of the Defamation Proceedings that it was unreasonable not to have pleaded that claim against the second defendant in those proceedings: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 602.

21. [58]

    In those circumstances the claim made for damages for personal injury in the Personal Injury Proceedings is doomed to fail.

22. [59]

    The plaintiff included the following pleading in the Personal Injury Proceedings under a heading “Breach of Privacy”:

23. [60]

    It is not clear from this pleading if the plaintiff is asserting that a cause of action exists based on a breach of privacy, separate from any other claim she is making from the publication of the article.

24. [61]

    I held in Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 at [37] that what the High Court said in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 (at [40]-[42] and [106]-[132] and [189]-[190]) would not appear to preclude the emergence of a tort for breach of privacy. I then made reference to three first instance decisions:

25. [62]

    In Doe v ABC [2007] VCC 281, the Victorian County Court awarded damages for breach of privacy in circumstances where the ABC was subject to a statutory duty not to identify the plaintiff as a victim of crime. This decision was distinguished and criticised by Kelly J in Sands v State of South Australia [2013] SASC 44:

26. [63]

    In Giller v Procopets (No 2) (2008) 24 VR 1, counsel for the appellant contended that the trial judge erred by failing to consider authorities which supported the development of a tort of invasion of privacy. The Victorian Court of Appeal made reference to Lenah, and to cases in the United Kingdom and New Zealand which have considered whether or not such a tort is recognised. The Court did not, however, need to consider the existence of a tort for breach of privacy because it found that the plaintiff was entitled to equitable compensation for mental distress arising out of a breach of confidence; namely, the release of a videotape of sexual activities between a couple subsequently estranged: see especially, Ashley JA at [167]-[168] and Neave JA at [447]-[452]. In Wilson v Ferguson [2015] WASC 15 Mitchell J held that Giller could not be said to be plainly wrong.

27. [64]

    The extent to which the juridical basis for breach of confidence might support its characterisation as an ‘equitable tort’ of misuse of private information has been the subject of recent academic debate: see, e.g., Douglas, Michael, ‘Characterisation of Breach of Confidence as a Privacy Tort in Private International Law’ (2018) 41(2) University of New South Wales Law Journal 490.

28. [65]

    Whatever the position is with regard to developments in the equitable doctrine of breach of confidence, the plaintiff does not purport to sue on that basis. I note, however, Basten JA’s comment in Maynes v Casey [2011] NSWCA 156 where his Honour said at [34] that Lenah and Giller “may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence.”

29. [66]

    In circumstances where no Australian superior court has recognised a generalised tort for breach of privacy, and where the plaintiff does not rely on the equitable doctrine of breach of confidence, the plaintiff’s interest in privacy is enforceable at law only so far as the particular way in which her privacy was invaded falls within the scope of the tort of defamation, on which basis these proceedings were commenced. In John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484, McColl JA said at [124]:

30. [67]

    In this way, the tort of defamation may be a legitimate vehicle for the enforcement of an interest in privacy. However, McCallum J held that the publication complained of was not reasonably capable of defaming her: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 at [13]. In any event, a claim for breach of privacy, if maintainable at all, was, as the plaintiff now asserts by this pleading, so relevant to the subject matter of the Defamation Proceedings that it was unreasonable for her not to have pleaded that claim in the Defamation Proceedings. An Anshun estoppel operates to prevent the claim now being made.

31. [68]

    The claim in the Second Equity Proceedings is one simply for injunctions in relation to the same article. One injunction sought is for the removal of the article and the other is an injunction to prevent any further publication of it.

32. [69]

    When these proceedings came before Rein J his Honour identified that the plaintiff had sought identical relief in the First Equity Proceedings where she had been unsuccessful in the first instance and again when she tried to have the orders of Kunc J said aside. That application was dismissed by Hallen J on 19 March 2018. When those First Equity Proceedings were transferred to McCallum J in the Defamation List, McCallum J held in her judgment of 20 July 2018:

33. [70]

    In commenting on those remarks of McCallum J, Rein J said at [11]:

34. [71]

    Of course, a Notice of Appeal had not, at the time the matter was before Rein J, been lodged in relation to either of the earlier proceedings. Rather, a Notice of Intention to Appeal had been filed in relation to the Defamation Proceedings.

35. [72]

    No doubt, because his Honour was only asked to grant ex parte relief in those proceedings, his Honour did no more than refuse that relief. However, in the present circumstances, where it is sought to dismiss those proceedings, his Honour’s comments are relevant to the issue of whether those proceedings should be dismissed. His Honour noted that the relief claimed is the same as the relief claimed in the First Equity Proceedings which were dismissed. Such, with respect, is undoubtedly the case. That is sufficient to result in the Second Equity Proceedings being dismissed on the basis either of a res judicata, or as an abuse of process.

36. [73]

    In any event, the Second Equity Proceedings are dependent upon the articles being established as defamatory, no other basis for the relief sought being demonstrated, and the plaintiff failed in that regard in the Defamation Proceedings where McCallum J held in Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 at [30] and [43]-[44]:

37. [74]

    There is, accordingly, a res judicata in relation to the claim made in the Second Equity Proceedings.

Costs

1. [75]

   In circumstances where neither the second Equity proceedings nor the Personal Injury Proceedings should have been brought, and the plaintiff refused to discontinue them when asked more than once by those acting for the first and second defendants, no basis is shown for making other than the ordinary costs order, that in each case the plaintiff should pay the defendant’s costs of the Second Equity Proceedings and the first and second defendant’s costs of the Personal Injury Proceedings.

2. [76]

   The first and second defendants seek indemnity costs and, in the Personal Injury Proceedings, a gross sum costs order.

3. [77]

   The first and second defendants submitted that the matters which justified both an indemnity costs order and a gross sum costs order are the following.

4. [78]

   First, on 31 July 2018 those defendants wrote to the plaintiff offering to settle the costs order made in their favour in the First Equity Proceedings and the Defamation Proceedings for $17,102.39. That offer was open for 14 days. The plaintiff did not respond.

5. [79]

   On 15 September 2018 the first and second defendants wrote to the plaintiff enclosing draft bills of costs for the First Equity Proceedings and the Defamation Proceedings in total amount of $28,132.80. In the email enclosing the bill of costs, in respect of which the plaintiff was given 21 days to provide any comments opposing the bills in accordance with reg 35 of the Legal Profession Uniform Law Application Regulation 2015 (NSW), the solicitor for those defendants repeated the offer of July 2018 that if the plaintiff agreed to pay $17,102.39 those defendants would regard the matter as settled. That offer was left open until 8 October 2018 after which it was said the bills would be filed for assessment. The plaintiff did not respond to that offer.

6. [80]

   Secondly, as occurred in the First Equity Proceedings and the Defamation Proceedings, the plaintiff subsequently issued two proceedings in relation to the one claim, being the Second Equity Proceedings and the Personal Injury Proceedings. That caused unnecessary duplication of issues and further legal costs to the first and second defendants.

7. [81]

   Thirdly, the plaintiff has corresponded directly with employees and officers of the first and second defendants and repeatedly with the Court, all of which involved the incurring of extra costs by the first and second defendants.

8. [82]

   Fourthly, on six occasions from 6 September 2018 to 26 October 2018 the plaintiff has sought adjournments and/or extensions of time to complete compliance with directions of the Court, which also involved the incurring of extra cost by the first and second defendants.

9. [83]

   Fifthly, the failure of the plaintiff to respond to the offer of costs in the First Equity Proceedings and the Defamation Proceedings required the preparation of bills of costs for the purpose of assessment. That has involved considerable time and extra cost on behalf of the solicitor for the first and second defendants. The solicitor believes, on the basis of the manner in which the plaintiff has conducted all four proceedings, that the plaintiff will in all likelihood seek a review of any assessed costs.

10. [84]

    Sixthly, the plaintiff is bankrupt and appears not to own any real property.

11. [85]

    The solicitor for the first and second defendants has estimated costs and disbursements including counsel’s fees in an amount of $28,376.25. The solicitor for the first and second defendants submitted on the basis of her experience as a practising solicitor for 15 years that if the defendants were awarded costs on an indemnity basis it was likely to receive about 85% to 90% of their costs. On that basis, the defendants submitted that a sum of $24,000 would be the appropriate amount for a gross sum award, assuming indemnity costs were ordered.

12. [86]

    In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Gaudron and Gummow JJ said at [44]:

13. [87]

    In Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 the Court of Appeal (Sheller, Ipp and Tobias JJA) said at [8]-[9]:

14. [88]

    In the present case, the plaintiff first commenced two separate proceedings in relation to the same matter. Both of the proceedings were dismissed after it was held that the plaintiff failed on two essential aspects of her claim. She then instituted not one but two further proceedings which relied on the same publications, and claimed the same or very similar relief as had been claimed in the two earlier proceedings that had been dismissed.

15. [89]

    The plaintiff, it is to be remembered, has a law degree and appears to practise in some legal role in the firm where she is currently employed. It might reasonably be expected even of a non-legally trained litigant that, where that person’s proceedings had been dismissed because their case, in general terms, lacked substance for the claim they brought, such a person would know that it was inappropriate to commence fresh proceedings claiming the same relief on the same basis. There can be no doubt that someone with a law degree knows or is deemed to know that the dismissal of the first proceedings brings about a res judicata or an issue estoppel, and at the very least the institution of a subsequent proceeding is likely to be an abuse of process.

16. [90]

    In my opinion the plaintiff has engaged in the relevant sort of delinquency referred to in Oshlack and Mead v Watson. Her failure to respond in any way to the costs offer and subsequently the bill of costs served in relation to the first two proceedings and thereafter commencing the second set of proceedings, only highlights that delinquency.

17. [91]

    I consider that the plaintiff should pay the first and second defendants’ costs of the Second Equity Proceedings and the Personal Injury Proceedings on an indemnity basis.

18. [92]

    In Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Einstein J set out the principles which inform the exercise of the discretion to award a gross sum costs order at [9]:

19. [93]

    In Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Giles JA said of the earlier equivalent provision to s 98(4) of the Civil Procedure Act 2005 (NSW) (Supreme Court Rules 1970 (NSW) pt 52A r 6(2)):

20. [94]

    In Hamod v State of New South Wales and Anor [2011] NSWCA 375 Beazley JA (with whom Giles and Whealy JJA agreed) said:

21. [95]

    Although some of the authorities including Hamod and Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 have noted that the gross sum costs procedure was particularly useful in complex cases, other authorities have made it clear that the old Rule (now s 98(4)(c)) is expressed in general terms and is not limited to cases of that type: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811 at [8] and Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 at [6].

22. [96]

    In addition to the matters put forward by the first and second defendants to justify such an order, there is one further matter that should also be considered. Since the affidavit of the first and second defendants’ solicitor was sworn and since I heard the first and second defendants’ motions on 30 October 2018, the plaintiff filed a notice of motion, seeking that she be permitted to provide evidence and submissions prior to my judgment being delivered on those notices of motion, and seeking a stay of my judgment until the plaintiff had been given that opportunity. The application was not made to me but came before Walton J on 6 November 2018. In the meantime, the plaintiff filed an amended notice of motion seeking identical relief. The only difference between the original notice of motion and the amended notice of motion was that it added the file number of the Second Equity Proceedings to the notice of motion which had been filed in the Personal Injury Proceedings.

23. [97]

    Justice Walton dismissed the amended notice of motion holding that, if any relief was available to the plaintiff, it was by way of an appeal from my decision to refuse the adjournment. His Honour ordered that the plaintiff pay the first defendant’s costs of the amended notice of motion.

24. [98]

    That application made by the plaintiff was a hopeless application doomed to fail. It perpetuated a course of conduct adopted by the plaintiff and noted by Fagan J in the proceedings where he declared the plaintiff was a vexatious litigant: Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794, and more recently in Kostov v Amelie Housing [2018] NSWSC 1800 at [5], where the plaintiff, when dissatisfied with a decision of a court, habitually applies to another judicial officer of the same level to reverse it or amend it. Such a process incurs unnecessary costs for the party to the litigation, and that problem is exacerbated now that the plaintiff’s estate has been sequestrated.

25. [99]

    In accordance with the principles associated with gross sum costs orders, I consider that the manner in which the plaintiff has instituted the four sets of proceedings and conducted them demonstrates a high likelihood that she will use the costs assessment process to cause the first and second defendants to incur considerable costs before that assessment process comes to an end. In circumstances where the plaintiff has limited resources to pay any costs order by reason of her bankruptcy and her not owning any real property, I consider that a gross sum costs order should be made in favour of the first and second defendants.

26. [100]

    The further issue to be determined is the precise sum that the Plaintiff should pay. When assessing the costs for the purpose of making a gross sum order a broad brush approach may be taken: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [31] and [38]; Hamod v State of New South Wales (No 13) [2009] NSWSC 756 at [31]; see also Hamod (Court of Appeal) at [819]-[820] and Young v Hones (No 3) [2014] NSWSC 499 at [28]-[30].

27. [101]

    It is ordinarily accepted that a discount should be provided on the costs figure which has been established. That discount is concerned not only with the relationship between solicitor/client costs and party/party costs but also with contingencies relevant to a costs assessment process: Hamod (Court of Appeal) at [814] and [820].

28. [102]

    In Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 1307 Schmidt J appears to have reduced the costs by 10% (at [16]). The Court of Appeal in Harrison v Schipp took a similar approach at [51]. In Simone Starr-Diamond Slattery J at [22] allowed 80%, and in Coshott v Parker (No 3) [2015] NSWSC 1195 Hall J at [78] allowed 70%. In Stankovic v State of NSW (No. 2) [2016] NSWSC 335, I allowed 80% at [17].

29. [103]

    Bearing in mind those authorities, I consider that an appropriate figure is 80% of what would be likely to be assessed by a costs assessor. That assessment is likely to amount to $25,000 bearing in mind the evidence from the first and second defendants’ solicitor. Accordingly, I assess the gross sum costs order in respect of the Personal Injury Proceedings at $20,000.

Stay of further proceedings

1. [104]

   The notice of motion filed in the Personal Injury Proceedings refers to s 51 of the Civil Procedure Act 2005 (NSW). That is clearly an error, and I have assumed the reference should be to s 67. The reference to UCPR r 12.4 seems inappropriate. None of the proceedings has been discontinued to bring the rule into operation. The relevant rule would appear to be r 12.10.

2. [105]

   Rule 12:10 of the UCPR provides:

3. [106]

   As noted above at [7], McCallum J ordered on 20 July 2018 that the plaintiff was to pay the defendant’s costs of the First Equity Proceedings. Although the judgment/order issued 3 August 2018 in respect of orders made on 20 July 2018 concern both the First Equity Proceedings and the Defamation Proceedings, no costs order appears in relation to the Defamation Proceedings.

4. [107]

   However, r 42.20 of the UCPR provides:

5. [108]

   It is clear from McCallum J’s judgment of 8 June 2018 that her Honour dismissed the Defamation Proceedings. In those circumstances, and in the absence of any other order, r 42.20 applies with the result that the plaintiff must pay the defendant’s costs of those proceedings.

6. [109]

   Neither the costs of the Defamation Proceedings nor the costs of the First Equity Proceedings have been paid. In the face of the dismissal of both those proceedings, the plaintiff commenced the Second Equity Proceedings and the Personal Injury Proceedings which, I have determined, had as their basis, the publication of the article concerned. Those latter two proceedings relied on the same or substantially the same cause of action and claimed the same or substantially the same relief as the former two proceedings.

7. [110]

   Since, in this judgment, I have dismissed the Second Equity Proceedings and the Personal Injury Proceedings, there are no further proceedings on foot to be stayed pursuant to r 12.10. However, the Court is given the power to make consequential orders as it thinks fit.

8. [111]

   In Webster v Super Smart Strategies Pty Ltd; Courtney v Super Smart Strategies Pty Ltd [2017] NSWSC 531 a cross-claim had been dismissed with costs by reason of the cross-claimants’ persistent defaults in compliance with court directions and a failure to prosecute the cross-claim. The cross-defendants sought an order that no originating process to commence proceedings based on the same or similar allegations as those made in the cross-claim be permitted to be filed unless its costs in the dismissed proceedings were paid.

9. [112]

   Justice Adamson held at [61] that it was appropriate to make such an order not only to protect the cross-defendants but to protect the Court’s processes. Her Honour there said:

10. [113]

    In circumstances where the plaintiff commenced four sets of proceedings arising out of the same publications and seeking the same relief in two proceedings (both Equity Proceedings) and the same relief in two other proceedings (the Defamation Proceedings and the Personal Injury Proceedings) I consider that an order should be made under r 12.10 to prevent any further proceedings being commenced against the first and second defendants on the same or substantially the same cause of action.

11. [114]

    In one sense, such an order is no longer necessary because on 19 November 2018 Fagan J made orders pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) prohibiting the plaintiff from instituting proceedings in New South Wales: Kostov v State of New South Wales (Vexatious Proceedings). Against the possibility that orders made by Fagan J are set aside in any appeal from that judgment, I consider that there is merit in making the order under r 12.10 that I have indicated.

Conclusion

1. [115]

   I make the following orders:

   1. (1)

      In proceedings 2018/248745:

   2. (2)

      In proceedings 2018/258386:

   3. (3)

      The plaintiff is restrained from commencing any further proceedings arising out of the publication of the article referred to in paragraph [1] of this judgment unless and until: