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B1 v B2 (No.7)

B1 v B2 (No.7)

Case [2021] NSWDC 420 19 August 2021

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: B1 v B2 (No.7) [2021] NSWDC 420
Hearing dates: 19 August 2021
Date of orders: 19 August 2021
Decision date: 19 August 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Grant leave to the plaintiff to discontinue these proceedings subject to the costs orders set out in order 2.
(2) Vacate all costs orders made in these proceedings and in their place order the plaintiff to pay 80% of the defendant’s costs in these proceedings on an indemnity basis.

Catchwords:
PRACTICE AND PROCEDURE – plaintiff commences proceedings for defamation against his former wife for claiming he sexually assaulted their two children – plaintiff convicted and imprisoned for sexually assaulting their two children – plaintiff seeks leave to discontinue the defamation proceedings – plaintiff ordered to pay costs of the proceedings ordered on an indemnity basis

Legislation Cited:
Crimes Act 1900 (NSW) ss 61, 61M(2) and 61O(1)
Defamation Act 2005 (NSW) ss 40 and 42
Felons (Civil Proceedings) Act 1981 (NSW) s 6(2)
Uniform Civil Procedure Rules 2005 (“UCPR”) Part 12

Cases Cited:
AMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors (Costs) [2010] NSWSC 1519
B1 v B2 [2017] NSWDC 252
B1 v B2 (No 6) 2020 NSWDC 779
B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018)
B1 v B2 (No. 3) [2018] NSWDC 108
B1 v B2 (No. 4) [2018] NSWDC 497
Calderbank v Calderbank (1975) 3 All ER 333
Dye v Commonwealth Securities Limited [2012] FCA 242
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Haddad v Nationwide News Pty Limited (No 7) [2015] NSWSC 1814
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lesses v Maras (No 3) [2017] SASCFC 154
Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
Packer v Meagher [1984] 3 NSWLR 486
Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2

Category: Costs
Parties: Plaintiff: B1
Defendant: B2
Representation:
Counsel:
Plaintiff: Mr M Lewis
Defendant: Mr B Loukas
Solicitors:
Plaintiff: Diamond Conway Lawyers
Defendant: Lawhouse Solicitors

File Number(s): 2017/180457

Judgment

The applications before the court

These are proceedings for defamation for publication by the defendant, the former wife of the plaintiff, of two posts on Facebook in which she stated he mistreated her and abused their two children.
The plaintiff has conducted these proceedings combatively, including bringing applications to strike out the defence and seeking asset freezing orders: B1 v B2 [2017] NSWDC 252; B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018); B1 v B2 (No. 3) [2018] NSWDC 108 and B1 v B2 (No. 4) [2018] NSWDC 497; B1 v B2 (No 6) 2020 NSWDC 779. However, the plaintiff was convicted and sentenced for sexually abusing his two children and his appeal avenues now having been exhausted, he seeks leave to discontinue his defamation claim.
The question for determination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B1 v B2 (No.7)

Details

AGLC: B1 v B2 (No.7) [2021] NSWDC 420
Case: [2021] NSWDC 420
Decision Date: 19 August 2021

CaseChat Overview and Summary

The case of B1 v B2 (No.7) was before the court, where B1, the plaintiff, sought to discontinue defamation proceedings against B2, his former wife. The proceedings were initiated by B1 in response to B2's public statements that he had sexually assaulted their two children. Subsequently, B1 was convicted and imprisoned for these offences. Following his conviction, B1 sought leave to discontinue the defamation proceedings. The court was required to decide whether to grant leave to discontinue and, if so, what costs orders should be made.

The legal issues before the court involved the circumstances under which a plaintiff could be permitted to discontinue proceedings and the appropriate costs orders in such cases. The court had to consider the impact of the plaintiff's conviction on the defamation claim and whether the public interest in the continuation of the proceedings outweighed the plaintiff's right to discontinue. Additionally, the court needed to determine the appropriate costs order given the unique circumstances of the case, including the plaintiff's conviction and imprisonment.

The court granted leave for the plaintiff to discontinue the proceedings, subject to specific costs orders. The court emphasised that the plaintiff's conviction and imprisonment for the underlying offences significantly impacted the defamation claim. The court held that the plaintiff's right to discontinue was not absolute and had to be balanced against the public interest in resolving the defamation proceedings. In relation to costs, the court vacated all previous costs orders and directed that the plaintiff pay 80% of the defendant's costs in the proceedings on an indemnity basis. This order reflected the court's consideration of the plaintiff's ability to pay and the need to ensure that the defendant was not unduly prejudiced by the discontinuation of the proceedings.

Orders

Orders of the court

Order:

(1) Grant leave to the plaintiff to discontinue these proceedings subject to the costs orders set out in order 2.

(2) Vacate all costs orders made in these proceedings and in their place order the plaintiff to pay 80% of the defendant’s costs in these proceedings on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

B1 v B2 (No.7) [2021] NSWDC 420

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Fb v The Queen
[2021] HCASL 119 Para 15

…The plaintiff was refused leave to appeal by the High Court on 17 June 2021: [2021] HCASL 119 and now seeks leave to discontinue.…
FB v The Queen
[2020] NSWCCA 137 Para 14

…filed on 7 January 2019 and the plaintiff sought a stay of the proceedings pending the hearing of the appeal. The plaintiff’s appeal was dismissed ([2020] NSWCCA 137), but the plaintiff sought leave to appeal to the High Court. The freezing order was discharged by this court.…
B1 v B2 (No. 4)
[2018] NSWDC 497 Para 2

…7] NSWDC 252; B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018); B1 v B2 (No. 3) [2018] NSWDC 108 and B1 v B2 (No. 4) [2018] NSWDC 497; B1 v B2 (No 6) 2020 NSWDC 779. However, the plaintiff was convicted and sentenced for sexually abusing his two children and his appeal avenues now h…
B1 v B2 (No. 3)
[2018] NSWDC 108 Para 2

…g asset freezing orders: B1 v B2 [2017] NSWDC 252; B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018); B1 v B2 (No. 3) [2018] NSWDC 108 and B1 v B2 (No. 4) [2018] NSWDC 497; B1 v B2 (No 6) 2020 NSWDC 779. However, the plaintiff was convicted and sentenced for sexually abusing his two…
Lesses v Maras (No 3)
[2017] SASCFC 154 Para 27

…streamline the assessment process. These principles have been considered by appellate courts in defamation proceedings: Lesses v Maras (No 3) [2017] SASCFC 154 at [82] – [90].…
Farrow v Nationwide News Pty Ltd
[2017] NSWCA 246 Para 41

…his claim for defamation in relation to any of facts arising from his conviction would be a clear abuse of process: Farrow v Nationwide News Pty Ltd [2017] NSWCA 246.…
B1 v B2
[2017] NSWDC 252 Para 2

…iff has conducted these proceedings combatively, including bringing applications to strike out the defence and seeking asset freezing orders: B1 v B2 [2017] NSWDC 252; B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018); B1 v B2 (No. 3) [2018] NSWDC 108 and B1 v B2 (No. 4) [2018] NSWDC…
Zoef v Nationwide News Pty Ltd (No 2)
[2017] NSWCA 2 Para 2

…e by the defendant did not contain an offer to make amends within the meaning of Part 3 of the Defamation Act : Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 at [59] – [60].…
Haddad v Nationwide News Pty Limited (No 7)
[2015] NSWSC 1814 Para 23

…ing adjudicated by the court, any more than he/she should expect harsher treatment following such a step: Haddad v Nationwide News Pty Limited (No 7) [2015] NSWSC 1814 (one of four plaintiffs discontinued on the day of the trial; application for indemnity costs refused).…
Dye v Commonwealth Securities Ltd
[2012] FCA 242 Para 44

…, whether the publisher is a mother of two sexually abused children, or a wealthy corporation (as to which, see Dye v Commonwealth Securities Limited [2012] FCA 242 at [744] per Buchanan J).…
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2)
[2011] NSWCA 344 Para 42

…dings, which is not the case here), referring to the undesirability of retrospective consideration ( Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344). This overlooks the importance of s 42, which permits the tender of criminal convictions in defamation proceedings, in what was clearly intended to…
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (Costs)
[2010] NSWSC 1519 Para 27

…to account partial success in interlocutory proceedings: AMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors (Costs) [2010] NSWSC 1519 at [7]. In those proceedings, Brereton J (as his Honour then was) made a “broad axe” order of 90%, noting that such orders streamline the assessment proc…
Leichhardt Municipal Council v Green
[2004] NSWCA 341 Para 36

…. Second, the offer was a “walk away” offer of discontinuance with each party to pay his or her own costs: Leichhardt Municipal Council v Green [2004] NSWCA 341.…
Calderbank v Calderbank
(1975) 3 WLR 586 Para 20

…In his outline of submissions, Mr Loukas, for the defendant, simply relies upon the defendant’s Calderbank offer ( Calderbank v Calderbank (1975) 3 All ER 333) of 6 November 2017 offering to settle on the basis of a discontinuance, with each party to pay his or her own costs. That offer lapsed. No other offers were made.…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
61, 61M(2), 61O(1) 4 mentions (from Para 1)
Defamation Act 2005 (TAS)
40, 42 3 mentions (from Para 1)
Felons (Civil Proceedings) Act 1981 (NSW)
6(2) 2 mentions (from Para 42)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	B1 v B2 (No.7) [2021] NSWDC 420
Hearing dates:	19 August 2021
Date of orders:	19 August 2021
Decision date:	19 August 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Grant leave to the plaintiff to discontinue these proceedings subject to the costs orders set out in order 2. (2) Vacate all costs orders made in these proceedings and in their place order the plaintiff to pay 80% of the defendant’s costs in these proceedings on an indemnity basis.
Catchwords:	PRACTICE AND PROCEDURE – plaintiff commences proceedings for defamation against his former wife for claiming he sexually assaulted their two children – plaintiff convicted and imprisoned for sexually assaulting their two children – plaintiff seeks leave to discontinue the defamation proceedings – plaintiff ordered to pay costs of the proceedings ordered on an indemnity basis
Legislation Cited:	Crimes Act 1900 (NSW) ss 61, 61M(2) and 61O(1) Defamation Act 2005 (NSW) ss 40 and 42 Felons (Civil Proceedings) Act 1981 (NSW) s 6(2) Uniform Civil Procedure Rules 2005 (“UCPR”) Part 12
Cases Cited:	AMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors (Costs) [2010] NSWSC 1519 B1 v B2 [2017] NSWDC 252 B1 v B2 (No 6) 2020 NSWDC 779 B1 v B2 (No. 2) (District Court of New South Wales, Gibson DCJ, 12 February 2018) B1 v B2 (No. 3) [2018] NSWDC 108 B1 v B2 (No. 4) [2018] NSWDC 497 Calderbank v Calderbank (1975) 3 All ER 333 Dye v Commonwealth Securities Limited [2012] FCA 242 Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 Haddad v Nationwide News Pty Limited (No 7) [2015] NSWSC 1814 Leichhardt Municipal Council v Green [2004] NSWCA 341 Lesses v Maras (No 3) [2017] SASCFC 154 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Packer v Meagher [1984] 3 NSWLR 486 Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Category:	Costs
Parties:	Plaintiff: B1 Defendant: B2
Representation:	Counsel: Plaintiff: Mr M Lewis Defendant: Mr B Loukas Solicitors: Plaintiff: Diamond Conway Lawyers Defendant: Lawhouse Solicitors
File Number(s):	2017/180457