Mundine v Brown (No 7) [2011] NSWSC 170

Mundine v Brown (No 7) [2011] NSWSC 170

The Court found that the issues in the case were not sufficiently dominant or separable to justify apportioning costs between the parties, and that the first and third defendants had not made any settlement offer outside of mediation that could be considered for the purposes of s 40(2) of the Defamation Act 2005. The third defendant was ordered to pay costs on an indemnity basis, while the first defendant, due to his financial position and absence of unreasonable conduct, was ordered to pay costs on the ordinary basis. The plaintiff was ordered to pay the second defendant’s costs on the ordinary basis, as she persisted in the claim after admission from the third defendant and denial from...

Parties
Plaintiff: Lana Mundine; First Defendant: Avery Brown; Second Defendant: APN News and Media Limited; Third Defendant: Daily Examiner Pty Ltd
Jurisdiction
Australia
Judgment Date
18 March 2011
Procedural Posture
Consequential Orders (costs) in Civil Defamation Proceedings / Post Trial, Costs Determination Following Substantive Judgment
Outcome
Costs allocated as between parties per detailed orders
Legal Topics
Apportionment of Costs, Indemnity Costs, Ordinary Basis Costs, Defamation Act 2005 S 40, Mediation Offers and Effect of Settlement Negotiations, General Rule That Costs Follow the Event
Defamation Civil Procedure Costs Apportionment of Costs Indemnity Costs Ordinary Basis Costs Defamation Act 2005 S 40 Mediation Offers and Effect of Settlement Negotiations +1 more

Case Brief

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Parties

Lana Mundine

Plaintiff

Avery Brown

First Defendant

APN News and Media Limited

Second Defendant

Daily Examiner Pty Ltd

Third Defendant

Procedural Posture

Consequential Orders (costs) in Civil Defamation Proceedings / Post Trial, Costs Determination Following Substantive Judgment

Legal Issues

  1. 1 Whether costs should be apportioned between successful and unsuccessful issues
  2. 2 Whether plaintiff is entitled to indemnity costs from the defendants
  3. 3 Whether the interests of justice require any different order regarding costs, including in light of mediation confidentiality

Ratio Decidendi

The Court found that the issues in the case were not sufficiently dominant or separable to justify apportioning costs between the parties, and that the first and third defendants had not made any settlement offer outside of mediation that could be considered for the purposes of s 40(2) of the Defamation Act 2005. The third defendant was ordered to pay costs on an indemnity basis, while the first defendant, due to his financial position and absence of unreasonable conduct, was ordered to pay costs on the ordinary basis. The plaintiff was ordered to pay the second defendant’s costs on the ordinary basis, as she persisted in the claim after admission from the third defendant and denial from...

Court Disposition

Costs allocated as between parties per detailed orders

Orders

  • Order the first and third defendants to pay the plaintiff's costs of the proceedings.
  • Order the first defendant to pay the costs referred to in order (1) on the ordinary basis.