Tabbaa v Nine Network Pty Ltd (No.11) [2018] NSWSC 389

Tabbaa v Nine Network Pty Ltd (No.11) [2018] NSWSC 389

The jury's findings that the three defamatory imputations concerning the plaintiff were substantially true necessarily involved rejection of the plaintiff's evidence on matters about which she could not have been innocently mistaken. The Court concluded that she had been deliberately untruthful, had invoked and persisted in the Court's process on a basis she knew to be false, and thereby abused the Court's process. Those circumstances justified indemnity costs. Because substantial parts of the trial concerned issues solely arising in Mouhammad Tabbaa's actions, only one third of the trial and post-verdict hearing costs were attributed to the plaintiff's action.

Jurisdiction
Australia
Judgment Date
19 April 2018
Procedural Posture
Defamation Proceeding; Costs Application / Post Verdict Application by the Defendant for Indemnity Costs After Judgment for the Defendant
Outcome
Defendant's application for indemnity costs granted, with apportionment of trial and post-verdict hearing costs.
Legal Topics
['indemnity Costs' 'party/party Costs' 'defence of Justification' 'substantial Truth' 'false or Misleading Evidence' 'abuse of Process' 'apportionment of Trial Costs']
['costs' 'defamation' 'civil Procedure'] ['indemnity Costs' 'party/party Costs' 'defence of Justification' 'substantial Truth' 'false or Misleading Evidence' 'abuse of Process' 'apportionment of Trial Costs']

Case Brief

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Procedural Posture

Defamation Proceeding; Costs Application / Post Verdict Application by the Defendant for Indemnity Costs After Judgment for the Defendant

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs on an indemnity basis." 'Whether the plaintiff pursued the defamation claim on a basis she knew to be false and gave deliberately untruthful evidence.' 'Whether the proceedings amounted to an abuse of process.' "What proportion of the trial and post-verdict hearing costs should be attributed to the plaintiff's action where it was tried with Mouhammad Tabbaa's actions."]

Ratio Decidendi

The jury's findings that the three defamatory imputations concerning the plaintiff were substantially true necessarily involved rejection of the plaintiff's evidence on matters about which she could not have been innocently mistaken. The Court concluded that she had been deliberately untruthful, had invoked and persisted in the Court's process on a basis she knew to be false, and thereby abused the Court's process. Those circumstances justified indemnity costs. Because substantial parts of the trial concerned issues solely arising in Mouhammad Tabbaa's actions, only one third of the trial and post-verdict hearing costs were attributed to the plaintiff's action.

Court Disposition

Defendant's application for indemnity costs granted, with apportionment of trial and post-verdict hearing costs.

Orders

  • ['The costs to be paid by the plaintiff under the costs order made against her on 21 December 2017 are to be assessed and payable on the indemnity basis.' "In the assessment of the costs of the proceedings awarded against the plaintiff the defendant's costs of the trial and post-verdict hearing on 5 February 2018...