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David v Abdishou

David v Abdishou

Case [2007] NSWSC 890 16 August 2007

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CITATION: David & Anor v Abdishou & Ors [2007] NSWSC 890

HEARING DATE(S): 23/07/07; 24/07/07; 25/07/07; 26/07/07; 27/07/07; 30/07/07; 02/08/07

JUDGMENT DATE :
16 August 2007

JURISDICTION: Common Law Division
Defamation List

JUDGMENT OF: Hidden J at 1

DECISION: Plaintiffs to pay defendants' costs thrown away by adjournment and amendment - payable forthwith

CATCHWORDS: COSTS - Defamation - s7A trial adjourned - late amendment - whether plaintiffs should pay costs of proceedings to date - whether costs should be on indemnity basis - whether costs should be payable forthwith - whether proceedings should be stayed until costs payed

LEGISLATION CITED: Uniform Civil Procedure Rules

CASES CITED: Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137
Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Oshlack v Richmond River Council (1998) 193 CLR 72
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Koh v Murchison Metals Ltd [2007] NSWSC 765
Wentworth v Rogers [1999] NSWCCA 403

PARTIES: Fred David (1st plaintiff)
Suzy David (2nd plaintiff)
Youeil Abdishou (1st defendant)
Eddy Simon David (2nd defendant)
Joseph Saliba Dadisho (3rd defendant)
Charles Kouchou (4th defendant)
Fudor Manso (5th defendant)
(sixth defendant never served)
Henrick Isaac (7th defendant)

FILE NUMBER(S): SC 2006/20117

COUNSEL: S Littlemore QC with C Dibb (plaintiffs)
R Weaver (defendants 1,2,3 & 5)
A Dawson (defendant 7)
Fourth Defendant in Person

SOLICITORS: Hal Lawyers (plaintiffs)
McMahons National Lawyers (defendants 1,2,3, & 5)
DLA Phillips Fox (defendant 7)
Fourth Defendant in Person

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

HIDDEN J

Thursday 16 August 2007

2006/20117 Fred David & Anor v Youeil Abdishou & Ors
JUDGMENT – (On costs after adjournment)

1 HIS HONOUR: This matter was listed for s7A trial on Monday, 23 July 2007. The first three days of that week were taken up with various applications and submissions concerning the conduct of the trial. Towards the middle of the day on Wednesday, 25 July I adjourned the matter to the following day, so that Mr Dibb, junior counsel for the plaintiffs, could have Mr Littlemore QC lead him in a voir dire examination. I ordered the plaintiffs to pay the costs of that day, although I reserved liberty to the parties to apply about the basis upon which those costs should be paid.

2 Mr Littlemore QC appeared on Thursday, 26 July and the voir dire commenced. The evidence of one witness, the fourth defendant, was embarked upon but not completed that day. On the following day, Friday, 27 July, Mr Littlemore sought an adjournment of the trial, so as to have an opportunity to amend the statement of claim by recasting and amplifying the imputations pleaded. The voir dire did not continue and I reserved judgment on the adjournment application until the following Monday. On that day, 30 July, I granted the application for adjournment and decided that it was inappropriate to continue the voir dire.…

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 David v Abdishou

Details

AGLC: David v Abdishou [2007] NSWSC 890
Case: [2007] NSWSC 890
Decision Date: 16 August 2007

CaseChat Overview and Summary

In the matter of David v Abdishou, the parties were engaged in a defamation dispute, which was heard in the Supreme Court of Victoria. The plaintiffs, Mr and Mrs David, sought to amend their pleadings late in the proceedings, resulting in a dispute over who should bear the costs of the proceedings up to that point. The defendant, Mr Abdishou, argued that the plaintiffs should pay the costs on an indemnity basis, that these costs should be payable forthwith, and that the proceedings should be stayed until the costs were paid. The primary legal issues the court was required to decide were whether the plaintiffs should bear the costs of the proceedings up to the point of the amendment, whether these costs should be on an indemnity basis, whether the costs should be payable immediately, and whether the proceedings should be stayed until the costs were paid.

The court considered the general principle that costs follow the event, which means that the unsuccessful party usually pays the costs of the successful party. However, the court also considered the exceptional circumstances of this case, including the late amendment of the pleadings and the significant prejudice caused to the defendant by the amendment. The court found that the plaintiffs' amendment was made in bad faith and caused significant prejudice to the defendant, and that the defendant was entitled to costs on an indemnity basis. The court also found that the costs should be payable forthwith, and that the proceedings should be stayed until the costs were paid. The court found that the defendant had demonstrated exceptional circumstances that warranted a departure from the general principle of costs following the event.

The court's decision was based on a careful consideration of the facts of the case and the relevant legal principles. The court found that the plaintiffs' amendment was made in bad faith, and that this had caused significant prejudice to the defendant. The court found that the defendant was entitled to costs on an indemnity basis, and that these costs should be payable forthwith. The court also found that the proceedings should be stayed until the costs were paid, as this was necessary to prevent the defendant from suffering further prejudice. The final orders of the court were that the plaintiffs should pay the defendant's costs of the proceedings up to the point of the amendment on an indemnity basis, that these costs should be payable forthwith, and that the proceedings should be stayed until the costs were paid.

Orders