Doe v Yahoo!7 P/L; Wright v Pagett (No 3)

[2013] QDC 188

DISTRICT COURT OF QUEENSLAND

CITATION:

Doe v Yahoo!7 P/L & Anor; Wright v Pagett & Ors (No 3) [2013] QDC 188

PARTIES:

Gladstone D2/2013

JANE DOE
(plaintiff)

v

YAHOO!7 PTY LTD
(first defendant)

and

YAHOO! INC
(second defendant)

Gladstone D3/2013

KELLY GEORGE WRIGHT
(plaintiff)

v

GEOFFREY PAGETT
(first defendant)

and

YAHOO!7 PTY LTD
(second defendant)

and

YAHOO! INC
(third defendant)

FILE NO/S:

D2/2013 and D3/2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Gladstone

DELIVERED ON:

16 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Hearing on the papers

JUDGE:

Smith DCJ

ORDER:

1.   The costs of and incidental to the applications are reserved.

2.   The applications by the Defendants to restrain the Plaintiffs from bringing further proceedings are adjourned to a date to be fixed.

CATCHWORDS:

COSTS- whether costs should follow the event- reserved costs

COUNSEL:

Mr. R. Anderson for the Applicant Defendants

Mr. K. Wright self represented for the Plaintiffs

SOLICITORS:

Bennett and Philp solicitors for the Applicant Defendants

No solicitors for the Plaintiffs

Introduction

1. On 9 August 2013 I delivered the decision in Doe v Yahoo!7 Pty Ltd & Anor; Wright v Pagett & Ors [2013] QDC 181. In that decision I struck out the Plaintiffs’ Statements of Claim, struck out some of the causes of action but did not strike out the claims.

1. I sought written submissions on the question of costs.

Yahoo!’s submissions

1. Yahoo! submits that it should have its costs of and incidental to the applications.  It is submitted by Yahoo that both Statements of Claim were struck out noting that the Statements of Claim were voluminous, unintelligible in parts and did not properly plead the causes of action relied upon. 

1. In addition Yahoo! points out that parts of the claim were struck out including for intentional infliction of emotional distress; under the Fair Trading Act 1989 (Q); and the Competition and Consumer Act 2010 (Cth).  It was accepted that other claims namely a breach of confidence; negligence and breach of privacy were not struck out.

1. It is submitted by Yahoo that it has enjoyed complete success on one part of the application and substantial success on the other.  The circumstances demonstrate in Yahoo!’s submission no reason to deprive them of the usual order.

Plaintiffs’ submissions

1. On the other hand the Plaintiffs submit that the parties should be liable for their own costs or alternatively the Defendants be responsible for the majority of costs or alternatively that costs be reserved.

1. The Plaintiffs submit there was no attempt by the Defendants to negotiate a change of venue.  Instead without discussion they brought an application in the Brisbane Court.  It is submitted the Defendants were unsuccessful in obtaining a transfer of the matter to Brisbane.

1. It is further submitted that the Defendants were unsuccessful with their attempts to stop the litigation based on the Personal Injuries Proceedings Act 2002 (Q) and failed to restrain the Plaintiffs from further commencing proceedings. 

1. It is further submitted that whilst the Statements of Claim were struck out the Defendants were not ultimately successful.  It is submitted there is a substantial possibility that the plaintiffs will be successful in their litigation.

Determination

1. Having considered the submissions of both parties it seems to me that this is a case where it is appropriate to reserve the costs.  The reason I adopt that approach is that while Yahoo! was successful in striking out the Statements of Claim, on the other hand it was not successful in striking out all of the causes of action. 

1. It seems to me appropriate to reserve the costs to the trial judge who can make a determination on the question after considering all of the causes of action which remain. Of course under Rule 698 of the UCPR the reserved costs will follow the event unless otherwise ordered.

1. In the circumstances my determination is to reserve the costs.

1. I adjourn Yahoo!’s application to restrain the Plaintiffs from bringing further proceedings to a date to be fixed.