Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307

Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307

Indemnity costs were justified because the appeal and application for leave had no merit and were doomed to fail, the applicant disregarded the UCPR and court directions without explanation, required leave but had not shown any prospect of obtaining it, and abandoned the proceedings without explanation on the afternoon before the hearing after the respondents had incurred their costs. Gross sum costs were also appropriate because the applicant's conduct had delayed and disrupted assessment and enforcement of the District Court costs order, there was a risk of further delay and expense through assessment and review, and the amounts claimed were supported by unchallenged evidence.

Jurisdiction
Australia
Judgment Date
30 September 2015
Procedural Posture
Costs Application in Court of Appeal Proceedings Arising From District Court Defamation Proceedings / On the Papers After the Applicant Discontinued or Abandoned the Appeal and Application for Leave to Appeal
Outcome
Respondents' notice of motion granted; indemnity costs and specified gross sum costs ordered.
Legal Topics
['indemnity Costs' 'specified Gross Sum Costs' 'abandoned Appeal' 'leave to Appeal' 'failure to Comply With Uniform Civil Procedure Rules 2005 (nsw) and Court Directions' 'separate Determination of Questions' 'defamatory Imputations' 'identification in Defamation']
['costs' 'defamation' 'civil Procedure' 'appeals'] ['indemnity Costs' 'specified Gross Sum Costs' 'abandoned Appeal' 'leave to Appeal' 'failure to Comply With Uniform Civil Procedure Rules 2005 (nsw) and Court Directions' 'separate Determination of Questions' 'defamatory Imputations' 'identification in Defamation']

Case Brief

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Procedural Posture

Costs Application in Court of Appeal Proceedings Arising From District Court Defamation Proceedings / On the Papers After the Applicant Discontinued or Abandoned the Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the respondents should receive indemnity costs of the Court of Appeal proceedings after the applicant abandoned the appeal on the afternoon before the hearing.' "Whether the applicant's appeal had any prospects of success." "Whether the applicant's non-compliance with the Uniform Civil Procedure Rules 2005 (NSW) and court directions justified indemnity costs." 'Whether costs should be ordered as specified gross sums rather than assessed costs.' "Whether the applicant's conduct in relation to assessment and enforcement of the District Court costs order justified gross sum costs orders."]

Ratio Decidendi

Indemnity costs were justified because the appeal and application for leave had no merit and were doomed to fail, the applicant disregarded the UCPR and court directions without explanation, required leave but had not shown any prospect of obtaining it, and abandoned the proceedings without explanation on the afternoon before the hearing after the respondents had incurred their costs. Gross sum costs were also appropriate because the applicant's conduct had delayed and disrupted assessment and enforcement of the District Court costs order, there was a risk of further delay and expense through assessment and review, and the amounts claimed were supported by unchallenged evidence.

Court Disposition

Respondents' notice of motion granted; indemnity costs and specified gross sum costs ordered.

Orders

  • ['Order the applicant in proceedings 2014/175465 to pay the costs of the respondents in those proceedings in a gross sum of $31,000.' 'Order that the costs ordered by Basten JA on 16 February 2015 be paid as a gross sum of $10,000.' 'Order the respondent to the notice of motion filed on 9 June 2015 to pay the costs...