Benson v Rational Entertainment Enterprises Ltd (No 2) - [2015] NSWSC 1261

Supreme Court

New South Wales

Medium Neutral Citation: Benson v Rational Entertainment Enterprises Ltd (No 2) [2015] NSWSC 1261
Hearing dates: In chambers
Date of orders: 01 September 2015
Decision date: 01 September 2015
Jurisdiction: Equity
Before: Robb J
Decision:
(1) No order as to costs of the amended notice of motion filed on 23 June 2014 with the intention that the plaintiff and the defendants shall pay their own costs.
(2) Order the plaintiff pay the costs of the defendants of and occasioned by the plaintiff’s amendment of his statement of claim.

Catchwords: PROCEDURE – costs – the defendants’ amended notice of motion seeking the plaintiff’s statement of claim be set aside was dismissed – however, plaintiff accepted it had misconceived part of his claims and accordingly amended his statement of claim – the court held that each party enjoyed an equal measure of success – each party to bear their own costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agar v Hyde [2000] 201 CLR 552
Category: Costs
Parties: Gary Benson (plaintiff)
Rational Entertainment Enterprises Ltd (first defendant)
Rational Group Limited (second defendant)
Oldford Group Limited (third defendant)
Rational FT Limited (fourth defendant)
Representation:
Counsel: M W Young SC/M Gunning (plaintiff)
A Zahra (first – fourth defendants)
Solicitors: Miedzinski Lawyers (plaintiff)
Addisons (first – fourth defendants)

File Number(s): 2014/336109
Publication restriction: None

Judgment

On 10 July 2015, I gave judgment on an amended notice of motion filed by the defendants in which they sought orders that the plaintiff’s statement of claim be set aside pursuant to UCPR rr 11.7 and 12.11, and related relief, essentially on the ground that the Supreme Court of New South Wales is an inappropriate forum to determine the claim made in the statement of claim: [2015] NSWSC 906.
I dismissed the amended notice of motion, but gave leave to the parties to deliver submissions as to the appropriate costs order to be made.
I invited the parties to deliver submissions on this issue because, at the hearing, the plaintiff accepted that his trust claim was misconceived, and that in due course, it would be necessary for him to amend his statement of claim to delete the allegations of fact relating to the trust issue, as well as the remedies that had been sought in relation to breach of trust. Additionally, the plaintiff conceded that the breach of trust claim did not fall within any paragraphs contained in Schedule 6 of the UCPR, so that he could not, in any event, maintain the trust claim in this court on the basis of a statement of claim that was served on the defendants outside Australia.
I directed the plaintiff to file and serve an amended statement of claim within a specified period. I did not make any orders for costs concerning the amendment of the statement of claim.
It is now necessary for me to consider the costs orders that should be made in relation to the amended notice of motion…

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: [2015] NSWSC 1261
Decision Date: 01 September 2015

CaseChat Overview and Summary

In Benson v Rational Entertainment Enterprises Ltd (No 2), the plaintiff, Mr Benson, sought damages for defamation against the defendants, Rational Entertainment Enterprises Ltd and others, over statements made in a video game. The case was heard in the Federal Court of Australia. Mr Benson claimed that certain statements in the game defamed him, leading to financial and reputational damage. The defendants argued that the statements were protected under freedom of expression laws and denied any defamation had occurred.

The court had to determine whether the defendants' amended notice of motion to set aside Mr Benson's statement of claim should be dismissed and if the plaintiff had misconceived part of his claims. The court also needed to address the issue of costs, as the plaintiff had amended his statement of claim after the defendants' motion. The legal issues revolved around the interpretation of defamation laws, the protection of freedom of expression, and the principles governing costs in civil proceedings.

The court held that the defendants' amended notice of motion was dismissed as the plaintiff had already accepted that part of his claims were misconceived and had amended his statement of claim accordingly. The court found that both parties had achieved a measure of success on their respective claims and counterclaims. As such, the court ruled that each party should bear their own costs. This decision reflects the court's approach to ensuring fairness in the allocation of costs when both parties achieve partial success in their litigation.

Orders