Dent v Burke (No 2)
[2019] ACTSC 259
•18 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dent v Burke (No 2) |
Citation: | [2019] ACTSC 259 |
Hearing Date: | Decided on written submissions |
DecisionDate: | 18 September 2019 |
Before: | Mossop J |
Decision: | See [18] |
Catchwords: | COSTS – APPLICATION FOR SPECIAL COSTS ORDER –where plaintiff unsuccessful on hearing of separate question – where determination of separate question determined the whole of the proceedings – where defendant seeks confirmation of order that plaintiff pays costs on party and party basis |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 1521, 1523, 1721 |
Cases Cited: | Dent v Burke [2019] ACTSC 166 GJ v AS (No 4) [2017] ACTCA 7 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 |
Parties: | Wendy Dent (Plaintiff) Donald Burke (Defendant) |
Representation: | Solicitors Capital Lawyers (Plaintiff) Kalantzis Lawyers (Defendant) |
File Number: | SC 290 of 2018 |
MOSSOP J:
Introduction
The history of this matter was summarised in my decision in Dent v Burke [2019] ACTSC 166 at [1]-[5].
1. On 27 November 2017, the defendant, Donald (Don) Burke gave a half hour long interview on a television program called “A Current Affair”. That is a program aired on television broadcasting stations affiliated with the National Nine Network and on various associated websites.
2. On 20 June 2018, the plaintiff commenced these proceedings claiming damages for defamation arising from publication of the matters in the interview. The only defendant is Mr Burke who is identified as having published the broadcast. That approach relies upon the broad scope of liability for publication as explained in Webb v Bloch (1928) 41 CLR 331 at 363-364.
3. The interview followed the disclosure of a variety of allegations of bullying and sexual misconduct made against the defendant. During the course of the interview, the defendant made a number of admissions about bullying behaviour and extramarital affairs but generally denied the allegations of sexual misconduct. Amongst those allegations were allegations attributed to the plaintiff that, when auditioning for a part on the defendant’s television program, the defendant asked her to audition naked to the waist. The imputations alleged by the plaintiff to be conveyed by the interview are:
1. That the plaintiff lied when she alleged that [the defendant] asked her to audition naked to the waist when she sought to be engaged on the program “Burke’s Backyard”; and
2. That the plaintiff made a false allegation against [the defendant] of sexual harassment, motivated by her wish to join a witch-hunt against Mr Burke.
4. The defendant filed a Defence on 20 August 2018 denying that the interview conveyed the pleaded imputations and pleading defences of justification, common law qualified privilege and statutory privilege.
5. On 3 April 2019, the defendant filed an application in proceedings seeking to have a separate question decided pursuant to r 1521 of the Court Procedures Rules 2006 (ACT). The separate question proposed was whether the interview conveyed the imputations pleaded in the Statement of Claim and, if so, whether those imputations are defamatory. The plaintiff consented to the making of that order and the order was made on 12 April 2019.
On 22 May 2019, I heard the application under s 1521 of the Court Procedures Rules 2006 (ACT) to decide the separate question. Following the hearing, I made orders pursuant to r 1523 of the Court Procedures Rules deciding the separate question in favour of the defendant. My orders were as follows:
1. Judgment be entered for the defendant.
2. The plaintiff is to pay the defendant’s costs of the proceedings.
3. Order 2 does not take effect for a period of 14 days and if, within that period, either party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, it does not take effect until further order of the court.
Pursuant to Order 3, the plaintiff sought to be heard in relation to costs. I subsequently ordered that this be done on the papers and directed that written submissions be filed.
Submissions
Plaintiff’s submissions
The plaintiff sought to rely on the court’s discretion under r 1721 of the Court Procedures Rules so as to prevent costs being awarded in favour of the defendant. The grounds on which the plaintiff submits the court should exercise its discretion can be summarised as follows:
1. The defendant was successful but on no merits of his own; and
2. The court’s findings rejecting the defendant’s denial of the assault allegations means that the defendant was unsuccessful, or not to be believed on key issues.
3. Costs ordered against the plaintiff in such circumstances could bring the administration of justice into disrepute.
The plaintiff submitted that in relation to the first point:
i.At paragraph 48 of the Court’s 28 June 2019 decision [2019] ACTSC 166 (“the decision”), the Court found that a “fair-minded observer” would understand that the plaintiff’s allegations against the defendant were “credible” and that the defendant’s denials (his manner of doing so) “… gave rise to real doubts about the credibility of his denials”.
ii.At paragraph 49 of the decision, the Court found that “… the effect of the publication was to cast doubt on the credibility of the defendant …”.
iii.At paragraph 50 of the decision, the Court noted that “The irony of the defendant obtaining judgment in his favour on the basis that he has will be obvious”.
iv.The defendant has stumbled into success in his application, not because of any candour or believability on his part, but rather to the contrary, he is so lacking in merit that no observer would believe his denials. He should not be rewarded by having his costs paid for by the plaintiff.
In relation to the second point the plaintiff submitted:
i.As cited above … the defendant’s denials did not satisfy the “fair-minded observer” test.
ii.At paragraph 7 of the decision, the Court noted the defendant counsel’s concession that if the defendant’s application was unsuccessful, then the defendant had defamed the plaintiff.
iii.The defendant is not believed on the key issues of his defence, namely his denial of his alleged acts on the plaintiff. He should not be rewarded by having his costs paid for by the plaintiff.
The plaintiff did not elaborate upon the third point in her submissions.
The plaintiff submitted that costs should not be awarded in the defendant’s favour or, in the alternative, that only the costs of the defendant’s Application in Proceedings dated 3 April 2019 be awarded.
Defendant’s submissions
The defendant’s submissions annexed some correspondence between the parties. That correspondence will be marked as an exhibit. The defendant’s submissions were as follows:
12. The plaintiff’s claim in defamation has been dismissed at the first hurdle – the Court has found that she was not defamed.
13. The defendant put the plaintiff on notice of this failing in her case before the proceedings were commenced …
14. The issue was again raised after the commencement of the proceedings …
15. It was on this basis that the defendant sought the separate trial, a course that the plaintiff ultimately consented to. The conduct of the defendant in pressing for this issue to be dealt with first was in order to save time and costs. Had the matter been left to trial then the parties would have incurred hundreds of thousands of dollars given that the plaintiff was asserting that the trial of the whole proceeding, including defences, would exceed one week.
16. The plaintiff’s submissions on this issue are misconceived. The matter the subject of the Judgment was one of meaning – not truth. The observations in the Judgment about a fair‑minded observer forming views about the plaintiff and the defendant were not findings of fact that the plaintiff has made “credible claims”. Indeed, there was no evidence before the Court from which an assessment of that issue could be made. The only evidence on the application was the broadcast itself.
17. The assertions in the plaintiff’s submissions that the defendant has “stumbled into success” in these proceedings because he lacks merit and was “not to be believed on key issues” are absurd in the circumstances of what the Court was tasked with in answering the Question.
18. The plaintiff’s entire claim has failed and she should pay the costs of her unmeritorious proceedings – she was not even defamed, a matter which was plain on the face of the broadcast and was drawn to her attention before she commenced the proceedings.
The defendant submitted that the costs order made on 28 June 2019 should be confirmed.
Relevant principles
Both parties accepted in their submissions that costs are in the discretion of the court (r 1721 of the Court Procedures Rules) and that usually, the unsuccessful party would be ordered to pay the costs of the successful party.
This discretion is properly characterised as a wide discretion, however it must be exercised judicially in accordance with established principle and statutory context: see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [65]. The result should also be fair, having regard to the particular facts and circumstances of the proceeding: see Lewis v Chief Executive Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196 at [13].
As a general principle, unless there is a sufficient reason to depart from the usual order, costs ordinarily follow the event: see GJ v AS (No 4) [2017] ACTCA 7 at [25]-[27] and Oshlack at [67].
Consideration
The defendant succeeded because the publication did not convey the defamatory imputations alleged. This result flowed from an assessment of the publication as a whole. That an assessment of the publication as a whole may have involved some assessment of what was said by the defendant and the manner in which that was treated by the interviewer and the publisher was simply an aspect of the task required in order to determine the separate question. The issue before the court was a discrete and limited one, meaning not truth. However it was an issue fundamental to the plaintiff’s cause of action.
Contrary to the defendant’s submissions, the precise basis upon which he succeeded was not outlined in the correspondence between the parties. The defendant did assert that the plaintiff was not defamed by the publication, but did so on the basis of an analysis of the words said by the defendant, rather than upon an analysis of the publication as a whole. While that might be significant if the defendant was seeking a better than usual costs order, he is not. He is merely seeking confirmation of the order that the plaintiff pay his costs on a party and party basis. In that context, the fundamentally important point is that the defendant has been wholly successful in the proceedings. There has been no disentitling conduct in, or in relation to, the proceedings which would warrant a departure from the usual order in relation to costs.
There is no basis upon which to accept the alternative submission of the plaintiff that costs be limited to the determination of the separate question. The outcome of the separate question was that the whole of the proceedings were ended in the defendant’s favour. There is no reason why, in those circumstances, he should receive only the limited costs of the determination of the separate question.
For these reasons the appropriate costs order is that which was made on 28 June 2019.
Orders
The order of the Court is:
1. Order 2 made on 28 June 2019 now takes effect.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 18 September 2019 |
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