Chan v Yip

[2014] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:

Chan v Yip [2014] NSWSC 189

Hearing dates:

3 March 2014

Decision date:

03 March 2014

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) The parties' costs of today be their costs in the cause.

(2) Pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW), the proceedings be transferred to the District Court.

Catchwords:

DEFAMATION - costs - transfer to District Court - no question of principle.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 146(1)

Cases Cited:

Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174

Category:

Interlocutory applications

Parties:

Justin Yat-Kun Chan (Plaintiff)
Maxwell Sing Gee Yip (Defendant)

Representation:

Counsel:
R. Rasmussen (Plaintiff)
L. Evans (Defendant)
Solicitors:
Pancific Legal (Plaintiff)
The People's Solicitors (Defendant)

File Number(s):

2013/212084

ex tempore Judgment

1. This matter was initially listed for argument in respect of two topics. The first concerned a dispute over a discovery category. The second concerned the inclusion by the plaintiff of two particular paragraphs in his reply.

1. After an exchange of correspondence and compliance with an order requiring the parties to file outlines of submissions in support of the respective parties' contentions, counsel sensibly resolved the dispute as to discovery.

1. In relation to the reply, the objection taken by the defendant was to parts of the reply which involved the plaintiff including words to the effect that, in addition to the matters pleaded, he reserved his right to rely on such other evidence at the trial which might establish either malice, or that a particular opinion of the defendant was not honestly held. That truly was a pleading quibble, but the defendant simply wished to mark out that he did not accept that the plaintiff had, by including such a statement, reserved to himself an unlimited right to expand upon the particulars at the trial.

1. In the end, none of these matters needed to be decided. The only argument that arose in respect of these issues was an application by the plaintiff for his costs.

1. The authorities dealing with costs when the parties resolve their differences are clear. In particular, the Court should avoid rehearing the merits of the matter that has been resolved. It is only if the Court can come to the conclusion that one party was overwhelmingly likely to succeed, or the other effectively surrendered, should I order costs.

1. Having had the debate about the discovery category explained to me and being appraised of the solution, I am not satisfied that either parties' arguments were overwhelmingly likely to be successful, or that one party surrendered, or that any party acted unreasonably. Accordingly, in respect of the matters that were listed today, there will be no order for costs or, perhaps better expressed, the costs will simply be the parties' costs in the cause.

1. A further issue that has arisen is whether the proceedings should be transferred to the District Court. Neither party opposes the transfer. I have earlier today given a judgment on this topic, namely Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174.

1. In this case, the defamatory publications were said to be some leaflets handed out at a meeting of an organisation associated with the Chinese community. The leaflets were said to be handed out at a social gathering at a restaurant. It does not appear that the extent of the publication was particularly extensive. The imputations pleaded are reasonably serious.

1. In the end result, it seems to me a matter that is quintessentially suited to be heard in the District Court. In particular, I am satisfied that it is a case that could have been commenced in the District Court. The issues raised by the pleadings are not particularly novel. As I have stated, the extent of the publication appears to be reasonably limited. The proceedings are at an early stage and I cannot see how the parties would be disadvantaged by a transfer to the District Court. In the circumstances, I will shortly make that order.

1. The defendant sought some special order to the effect, as I understand it, that the plaintiff pay the costs thrown away by reason of the proceedings being commenced in this Court. I do not propose to make that order. In circumstances where the Court of its own motion has initiated the transfer and I am not able to form the conclusion that it was wholly inappropriate to commence in this Court, I do not think such an order should be made. I might add that, in broad terms, the progress in this Court should be the same as in the District Court, so it is difficult to envisage whether any costs will be thrown away.

1. Accordingly, the Court orders that

(1)   The parties' costs of today be their costs in the cause.

(2) Pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW), the proceedings be transferred to the District Court.

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Decision last updated: 07 March 2014