On 2 and 8 November 2012, Black J heard a Notice of Motion filed on 11 October 2012 by two of the nine persons named as the First Plaintiff in these proceedings and by the Second Plaintiff. Judgment was delivered on 15 November 2012. It was held the Notice of Motion should be dismissed and the Second Further Amended Summons and Second Further Amended Statement of Claim should be struck out. Submissions on costs were received and the matter was heard again on 28 November 2012.
Black J considered the issue of whether he should be disqualified from determining the question of costs and concluded that neither actual nor apprehended bias were established.
In the ordinary course, costs would follow the event. Section 98(1) of the Civil Procedure Act 2005 (NSW) relevantly provides that:
"Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court; and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis."
Rule 42.1 of the Uniform Civil Procedure Rules 2004 (NSW) ("UCPR") provides that, where the Court makes an order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. The principles underlying an award of costs include that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful defendant should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tas)  HCA 48; (1956) 95 CLR 460 at 477.
Black J found that, as the Plaintiffs were unsuccessful in the motion, costs should follow the event in the ordinary course, so as to compensate the successful defendants for the costs to which they have been exposed in defending the motion. Three other issues relating to the question of costs arose:
1. Whether the Defendants should have leave to read a further affidavit;
2. Whether indemnity costs should be awarded; and
3. Whether an order for costs should be made against Mr Cliffe (one of the two persons of the nine persons named as First Plaintiff who filed the motion).
The first two issues were answered in the negative. The following orders were made:
1. Mr Joseph de Varda and Rabbi Dr Samuel Tov-Lev pay the costs of the Defendants of and incidental to the Plaintiffs' motion of 11 October 2012 on the ordinary basis as agreed or as assessed.
2. Mr David Cliffe pay the costs of the Defendants of and incidental to the Plaintiffs' motion of 11 October 2012 up to 30 October 2012 on the ordinary basis as agreed or as assessed.