Benhayon v Rockett (No 9) - [2019] NSWSC 172

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Benhayon v Rockett (No 9) [2019] NSWSC 172
Hearing dates: 6 December 2018
Date of orders: 28 February 2019
Decision date: 28 February 2019
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1)   The plaintiff is to pay the defendant’s costs of and incidental to the proceedings on an indemnity basis;

(2)   The defendant’s application for leave for collateral use of the documents identified in paragraph [49] of this judgment is dismissed, each party to pay its own costs of that application; and
(3)   The matter is listed at 9:30am on Wednesday 6 March 2019 (or other such date and time as agreed by the parties, and notified to my Associate), for submissions to be made as to why I should not refer Universal Law to the Office of the Legal Services Commissioner for investigation in respect of the conduct raised in paragraphs [29] to [36] of this judgment.
Catchwords:
COSTS – defamation – actions for defamation – indemnity costs – where the defendant seeks indemnity costs – where the defendant early in the litigation made an offer of settlement in writing – where at the time of the offer of settlement, there was no Defence filed – where the plaintiff unreasonably failed to accept a settlement offer made by the defendant – where the counterproposal amounts to a relevant matter to be considered in exercising the discretion to order indemnity costs
PROCEDURE – discovery of documents not admitted into evidence – use of documents – where defendant seeks leave to use documents obtained in present proceedings – use of documents obtained for collateral purpose of making complaints to regulatory authorities about the plaintiff – whether leave should be granted
Legislation Cited: Defamation Act 2005 (NSW) ss 30, 40
Uniform Civil Procedure Rules 2005 (NSW) rr 21.7, 42.1
Cases Cited: Calderbank v Calderbank [1976] 3 All ER 333
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Harman v Secretary of State for the Home Department [1983] AC 280
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Category: Costs
Parties: Serge Isaac Benhayon (Plaintiff)
Esther Mary Rockett (Defendant)
Representation:
Counsel:
N Olson (Plaintiff)
T Molomby SC (Defendant)
Solicitors:
Universal Law (Plaintiff)
O’Brien Solicitors (Defendant)

File Number(s): 2015/329298
Publication restriction: Nil

Judgment

On 9 November 2015, proceedings were commenced by the plaintiff suing the defendant for the contents of an article that she had placed on her web log (“blog”) in November 2014, as well as three comments that she had placed on the same blog in the days immediately following, as well as a tweet.
On 8 December 2015, an amended statement of claim was filed which added pleadings regarding the publication of some additional imputations.
Negotiations by exchange of letters of offer were pursued between late December 2015 and early February 2016. These negotiations reached a stalemate, and a formal Defence was filed on 29 February 2016.
This was followed by a further iteration of the statement of…

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.

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Details

Case: [2019] NSWSC 172
Decision Date: 28 February 2019

CaseChat Overview and Summary

The parties involved in the litigation were Benhayon and Rockett. The nature of the dispute was related to defamation, specifically concerning indemnity costs. The case was heard in the Supreme Court of Queensland. The defendant, Rockett, sought indemnity costs after the plaintiff, Benhayon, unreasonably failed to accept a settlement offer made early in the litigation. The offer was made in writing when no Defence had been filed at the time. Additionally, the defendant sought leave to use documents obtained in the present proceedings for a collateral purpose, namely making complaints to regulatory authorities about the plaintiff.

The legal issues before the court were twofold. First, the court needed to determine whether it should exercise its discretion to order indemnity costs in light of the defendant's offer of settlement and the plaintiff's unreasonable failure to accept it. Second, the court had to decide whether leave should be granted to the defendant to use documents obtained in the proceedings for a collateral purpose, specifically to make complaints to regulatory authorities about the plaintiff. These issues were central to the court's consideration of the case.

In addressing the first issue, the court considered the counterproposal by the plaintiff as a relevant matter in exercising its discretion to order indemnity costs. The court noted that the counterproposal was a significant factor in determining whether the plaintiff's failure to accept the settlement offer was reasonable. Regarding the second issue, the court found that the use of documents for a collateral purpose, such as making complaints to regulatory authorities, was not an appropriate use of the discovery process. The court ultimately denied the defendant's request for leave to use the documents for this purpose.

The court ordered that the defendant was entitled to indemnity costs due to the plaintiff's unreasonable failure to accept the settlement offer. The specific amount of costs was to be determined in further proceedings. The court also denied the defendant's request for leave to use the documents obtained in the proceedings for making complaints to regulatory authorities about the plaintiff.

Orders