Brose v Baluskas (No 7) - [2020] QDC 64

DISTRICT COURT OF QUEENSLAND

CITATION:

Brose v Baluskas & Ors (No 7) [2020] QDC 64

PARTIES:

TRACEY ANN BROSE
(Plaintiff)

v

DONNA JOY BALUSKAS
(First Defendant)

and

MIGUEL BALUSKAS
(Second Defendant)

and

TRUDIE ARNOLD
(Third Defendant)

and

IAN MARTIN
(Fourth Defendant)

and

KERRI ERVIN
(Fifth Defendant)

and

LAURA LAWSON

(Sixth Defendant)

and

CHARMAINE PROUDLOCK
(Seventh Defendant)

FILE NO/S:

D148 of 2016

DIVISION:

Civil

PROCEEDING:

Application for costs

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

25 March 2020 (ex tempore)

DELIVERED AT:

Southport

HEARING DATES:

On the papers

JUDGE:

Muir DCJ

ORDER:

1. As between the plaintiff and the first, second and sixth defendants: that each party bear their own costs.

2. As between the plaintiff and the third defendant: that the plaintiff pay the third defendant’s costs of the proceeding to be assessed if not agreed.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF ACTION – where plaintiff brought an action for defamation against multiple defendants – where plaintiff was only successful in part against first and second defendants –where both plaintiff and first and second defendants partially successful - whether appropriate order as to costs is that each party bear their own costs.

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – OFFERS TO SETTLE – INDEMNITY COSTS- STANDARD COSTS - where a formal offer was made prior to trial – whether the third defendant entitled to costs on the indemnity basis- whether plaintiff unreasonably rejected the offer – whether conduct of the plaintiff warrants an award of indemnity costs against her - whether interests of justice warrant parties to bear their own costs despite plaintiff being unsuccessful in her claim against the third defendant at trial.

LEGISLATION:

Defamation Act 2005 (Qld) ss 38, 40.

Uniform Civil Procedure Rules1999 (Qld) rr 361, 681

CASES:

Nationwide News Proprietary Limited v Weatherup [2017] QCA 70.

COUNSEL:

H Blattman for the plaintiff

First and Second Defendants are self-represented

M DeWaard for the third defendant.

SOLICITORS:

Bennett & Philp Lawyers for the plaintiff

First, Second and sixth defendants are self-represented

Mills Oakley for the third defendant.

Background

On the 28th of February 2020, I delivered my written judgment in this proceeding. In that judgment, I stated that my preliminary view as to costs was that each party should bear their own costs, but I allowed the parties until 4 pm Monday, 16 March 2020 to provide short written submissions if other orders were sought.
On 9 March 2020, the plaintiff advised in writing that she did not intend to make any further costs submissions, accepting that the appropriate order was that each party ought to bear their own costs. She quite properly, in my view, reserved her rights should another party seek any other order. She requested, through her solicitors, 21 days after receipt of such submissions to do so.
Despite the proceeding being dismissed against her, the sixth defendant has not filed any submissions in relation to costs.…

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 Brose v Baluskas (No 7)

Details

AGLC: Brose v Baluskas (No 7) [2020] QDC 64
Case: [2020] QDC 64
Decision Date: 25 March 2020 (ex tempore)

CaseChat Overview and Summary

The case of Brose v Baluskas (No 7) involved a plaintiff who brought an action for defamation against multiple defendants. The plaintiff was only successful in part against the first and second defendants, while both the plaintiff and these defendants were partially successful. The court was required to determine the appropriate order for costs between the parties. Additionally, the court had to consider whether the third defendant was entitled to indemnity costs due to the plaintiff's unreasonable rejection of a formal offer to settle prior to trial.

In exercising its broad discretion to order costs, the court considered the way in which the parties conducted their case and any other relevant matters. The court found that the plaintiff and the first and second defendants all enjoyed some success at trial, but their conduct was entrenched, leaving little prospect of a mediated resolution. Consequently, the court determined that the interests of justice warranted an order that each of these parties bear their own costs. Regarding the third defendant, the court noted that although the plaintiff's claim against this defendant was dismissed, the interests of justice required that both parties bear their own costs. The plaintiff's failure to adequately address the importance of context in her submissions was also highlighted.

The court ordered that the plaintiff and the first, second and sixth defendants bear their own costs, while the plaintiff was to pay the third defendant’s costs of the proceeding to be assessed if not agreed.

Orders

Orders of the court

1. As between the plaintiff and the first, second and sixth defendants: that each party bear their own costs.

2. As between the plaintiff and the third defendant: that the plaintiff pay the third defendant’s costs of the proceeding to be assessed if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The plaintiff also submits that the trial was significantly elongated because of the second defendant’s contextual truth defence, which ultimately rested on a contextual imputation that was found not to be defamatory. In my view, it is difficult in this case to apportion blame, for want of a better word, for the elongation of the case. There were a number of issues that were ventilated at trial by the plaintiff that caused the trial to go longer: for example, aspects of her aggravated damages case, and issues surrounding two posts that she only conceded at the end of the trial were statute-barred. Conclusion re appropriate costs order as between the plaintiff and the first and second defendants Under s 40 (1) of the Defamation Act, in awarding costs in defamation proceedings, the court must have regard to the way in which the parties conducted their case and any other matters that the court considers relevant. One of the relevant factors in this case in my view, is that the plaintiff and the first and second defendants all enjoyed some success at trial. But more crucially in this case is the fact that in my view the conduct by all of the parties left little to be desired. They became entrenched in their respective positions which meant there was little if any prospect of a mediated resolution. In the exercise of my broad discretion to order costs, it follows that the interests of justice warrant and I order, that each of the plaintiff and first and second defendants bear their own costs. Turning to the third defendant, the plaintiff submits, quite correctly, that this court has a very broad discretion on the issue of costs. And that, despite the fact that her claim against the third defendant was dismissed, the interests of justice require that she and the third defendant should bear their own costs. This submission is premised on the fact that whilst the third defendant’s defence denied that the posts were defamatory, it was on a bases different to those that were ultimately successful. The plaintiff referred to the court’s finding that the third defendant’s post was unpleasant, insulting, abusive and offensive but was not defamatory in that, in the context in which it was made, it would not have caused an ordinary reasonable person to think less of the plaintiff. At first blush, there is some force to the plaintiff’s submission, but it does overlook, in my view, that the plaintiff did not contemplate or address, as she ought to have done in my view, in either the conduct of her trial, her pleadings, or her trial submissions, that the authorities clearly establish that context and circumstances of the publication are material facts which must be taken into account in determining whether a defamatory imputation is both, as a matter of fact and law, likely to cause an ordinary reasonable person to think less of the plaintiff. Whilst it is certainly true that the impact of forum and context insofar as posts made on social media are concerned is an emerging and a vexed question, the issue of context and its importance as a relevant consideration is well-established.

Ratio Decidendi

Legal Principle Established

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CITATION:	Brose v Baluskas & Ors (No 7) [2020] QDC 64
PARTIES:	TRACEY ANN BROSE (Plaintiff) v DONNA JOY BALUSKAS (First Defendant) and MIGUEL BALUSKAS (Second Defendant) and TRUDIE ARNOLD (Third Defendant) and IAN MARTIN (Fourth Defendant) and KERRI ERVIN (Fifth Defendant) and LAURA LAWSON (Sixth Defendant) and CHARMAINE PROUDLOCK (Seventh Defendant)
FILE NO/S:	D148 of 2016
DIVISION:	Civil
PROCEEDING:	Application for costs
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	25 March 2020 (ex tempore)
DELIVERED AT:	Southport
HEARING DATES:	On the papers
JUDGE:	Muir DCJ
ORDER:	1. As between the plaintiff and the first, second and sixth defendants: that each party bear their own costs. 2. As between the plaintiff and the third defendant: that the plaintiff pay the third defendant’s costs of the proceeding to be assessed if not agreed.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF ACTION – where plaintiff brought an action for defamation against multiple defendants – where plaintiff was only successful in part against first and second defendants –where both plaintiff and first and second defendants partially successful - whether appropriate order as to costs is that each party bear their own costs. DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – OFFERS TO SETTLE – INDEMNITY COSTS- STANDARD COSTS - where a formal offer was made prior to trial – whether the third defendant entitled to costs on the indemnity basis- whether plaintiff unreasonably rejected the offer – whether conduct of the plaintiff warrants an award of indemnity costs against her - whether interests of justice warrant parties to bear their own costs despite plaintiff being unsuccessful in her claim against the third defendant at trial.
LEGISLATION:	Defamation Act 2005 (Qld) ss 38, 40. Uniform Civil Procedure Rules1999 (Qld) rr 361, 681
CASES:	Nationwide News Proprietary Limited v Weatherup [2017] QCA 70.
COUNSEL:	H Blattman for the plaintiff First and Second Defendants are self-represented M DeWaard for the third defendant.
SOLICITORS:	Bennett & Philp Lawyers for the plaintiff First, Second and sixth defendants are self-represented Mills Oakley for the third defendant.