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Hunt v Al Halek

Hunt v Al Halek

Case [2020] NSWDC 541 18 September 2020

Defamation

Costs

Abuse of Process

Admissibility of Evidence

Tort Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Hunt v Al Halek [2020] NSWDC 541
Hearing dates: 11 September 2020
Date of orders: 11 September 2020
Decision date: 18 September 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   The parties to bring in Short Minutes of Order reflecting each of the occasions upon which the plaintiff is liable to pay costs thrown away by reason of his amended pleading.
(2)   Plaintiff’s application for costs payable forthwith as a gross sum order is dismissed.
(3)   Parties’ costs to be cost in the cause.

Catchwords:
TORT – defamation – defendant in person provides two defences inadequately pleading justification – solicitor subsequently retained first retains and then drops the plea of justification while pleading qualified privilege – plea of triviality then abandoned as well – whether repeated amendments to pleadings warrants an order for costs to be assessed forthwith in a gross sum costs order – application refused

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56 – 62, 98(4)
Federal Court of Australia, Costs Practice Note (GPN-COSTS)

Cases Cited:
Alhalek v Quintiliani t/as Kells Lawyers [2020] FCA 1272
Amos v Monsour P/L & Ors [2009] QCA 65
Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994)
Bell v Pentelow [2019] HCA 29; 93 ALJR 1007; 372 ALR 555
Bernstein v Poon, 2015 ONSC 2125
Bhagat v Global Custodians Ltd [2002] FCAFC 51
Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863
Fiduciary Limited v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1; 55 ALR 1
Ghosh v Miller (No 2) [2016] NSWSC 713.
Hague v Cordiner(No 2) [2020] NSWDC 23
Hockey v Fairfax & Ors (No 2) [2015] FCA 750
Johnson v Department of Community Services (No 2) [1999] NSWSC 1251
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Mathews v Pigram [2020] NSWDC 526
McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734
Merringtons Pty Ltd v Luxxotica Retail Pty Ltd [2006] VSC 25
Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514
Opai v Culpan [2017] NZHC 1036, [2017] NZAR 1142
Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121
Petkovic v Koutalianos [2016] NSWSC 1817
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] FCA 955
Toben v Nationwide News Pty Ltd [2015] NSWSC 1784 at [109]
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720

Texts Cited:
The Hon Justice Murphy, “The Problem of Legal Costs: Lump Sum Costs Orders in the Federal Court”, Federal Court of Australia, 17 November 2017

Category: Procedural and other rulings
Parties: Plaintiff: John Richard Paul Hunt
Defendant: Kyled Al Halek
Representation:
Counsel:
Plaintiff: Mr T Senior
Defendant: Ms A Tannous (solicitor)
Solicitors:
Plaintiff: Kylee Trevitt Legal
Defendant: Company (Giles)

File Number(s): 2019/313938

Judgment

The proceedings and applications

The plaintiff commenced proceedings for…

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 Hunt v Al Halek

Details

AGLC: Hunt v Al Halek [2020] NSWDC 541
Case: [2020] NSWDC 541
Decision Date: 18 September 2020

CaseChat Overview and Summary

In the matter of Hunt v Al Halek, the plaintiff, Hunt, sued the defendant, Al Halek, for defamation. The plaintiff's claim stemmed from comments made by the defendant, which were allegedly defamatory in nature. The case was heard by the court which had to determine whether the defendant's comments were indeed defamatory and, if so, what the appropriate remedy might be.

The legal issues before the court involved the adequacy of the defendant's pleadings in relation to the defences of justification, qualified privilege, and triviality. The defendant initially pleaded justification but later dropped this defence, switching to qualified privilege. Subsequently, the plea of triviality was also abandoned. The court had to consider whether the repeated amendments to the pleadings warranted an order for costs to be assessed forthwith in a gross sum costs order.

The court found that while the amendments to the pleadings were numerous, they did not justify the imposition of a gross sum costs order. The court held that each instance of the plaintiff being liable for costs thrown away due to amended pleadings should be documented in Short Minutes of Order. The plaintiff's application for costs payable forthwith as a gross sum order was dismissed, and the costs of the parties were to be cost in the cause. This decision underscores the need for careful consideration of pleading amendments and their potential financial implications.

Orders

Orders of the court

(1) The parties to bring in Short Minutes of Order reflecting each of the occasions upon which the plaintiff is liable to pay costs thrown away by reason of his amended pleading.

(2) Plaintiff’s application for costs payable forthwith as a gross sum order is dismissed.

(3) Parties’ costs to be cost in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hunt v Al Halek [2020] NSWDC 541

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Matthews v Pigram
[2020] NSWDC 526 Para 57

…tween $45,000 and $58,000, of which he said 75% would be recoverable on assessment unless an indemnity costs order were made. In Mathews v Pigram [2020] NSWDC 526, where the costs of the whole proceedings up to an assessment hearing were ordered on an indemnity basis, the assessed sum is below $50,000.…
Alhalek v Quintiliani trading as Kells Lawyers
[2020] FCA 1272 Para 47

…one year to get this far”. The second is the asserted imminent bankruptcy of the defendant (see Alhalek v Quintiliani t/as Kells Lawyers [2020] FCA 1272), relating to bankruptcy proceedings concerning a debt incurred to a solicitor for action in the Local Court).…
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd
[2020] FCA 955 Para 58

…al Circuit Court of Australia (where the preference is for gross sum costs orders). For example, in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] FCA 955, a gross sum costs order was sought for the vacation of a hearing date where senior and junior counsel had been briefed; after a detailed analysis of…
Hague v Cordiner (No. 2)
[2020] NSWDC 23 Para 57

…been given in other defamation claims, such as Mr Goldsmith’s estimate (made during a security for costs application) in Hague v Cordiner (No 2) [2020] NSWDC 23 at [3], namely between $45,000 and $58,000, of which he said 75% would be recoverable on assessment unless an indemnity costs order were made. In Mathews…
Bell Lawyers Pty Ltd v Pentelow
[2019] HCA 29 Para 15

…his attention some issues in relation to the statement of claim as well as the defence, and also to the decision of the High Court in Bell v Pentelow [2019] HCA 29; 93 ALJR 1007; 372 ALR 555, as to the entitlement (or lack thereof) of a solicitor acting for himself to claim legal fees.…
Opai v Culpan
[2017] NZHC 1036 Para 8

…f State for Justice, dated 29 November 2018). Recent judicial commentary in other common law jurisdictions includes New Zealand ( Opai v Culpan [2017] NZHC 1036, [2017] NZAR 1142 at [81]) and Canada ( Bernstein v Poon , 2015 ONSC 2125 (CanLII) at [4] – [8] and [63]).…
Petkovic v Koutalianos
[2016] NSWSC 1817 Para 64

…re best made only in clear cases, for the reasons explained by Fullerton J in Ghosh v Miller (No 2) [2016] NSWSC 713 (see also Petkovic v Koutalianos [2016] NSWSC 1817 at [205] per Hallen J). As both Fullerton J and Hallen J emphasise, this is a procedure to be used to avoid the expense, delay and aggravation of the…
McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd (No 1)
[2016] VSC 734 Para 10

…delays of traditionally expensive and time-consuming tasks (as was observed in McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734. However, there is little evidence of this to date.…
Ghosh v Miller (No 2)
[2016] NSWSC 713 Para 64

…ble as gross sums for interlocutory applications are best made only in clear cases, for the reasons explained by Fullerton J in Ghosh v Miller (No 2) [2016] NSWSC 713 (see also Petkovic v Koutalianos [2016] NSWSC 1817 at [205] per Hallen J). As both Fullerton J and Hallen J emphasise, this is a procedure to be used…
Toben v Nationwide News Pty Ltd; Toben v Mathieson
[2015] NSWSC 1784 Para 48

…ng a costs order as draconian as the one sought by Mr Senior. The advantages of a bankrupt defamation plaintiff ( Toben v Nationwide News Pty Ltd [2015] NSWSC 1784 at [109] ; Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994) may not be shared by a defendant, but that is a bridge which must be cro…
Hockey v Fairfax Media Publications Pty Ltd (No 2)
[2015] FCA 750 Para 18

…ge, can lead to long and expensive trials foundering over some overlooked interlocutory issue such as defamatory meaning (see Hockey v Fairfax (No 2) [2015] FCA 750 at [118] – [119] where White J stated that, if the plaintiff had restricted his case to the actionable poster and tweets, the claim “may not have inv…
Penson v Titan National Pty Ltd (No 3)
[2015] NSWCA 121 Para 2

…to payment of the relevant invoices (see Merringtons Pty Ltd v Luxxotica Retail Pty Ltd [2006] VSC 25 at [10]; Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121 at [25]). As a solicitor, the plaintiff is likely to be registered for GST.…
Bobb v Wombat Securities Pty Ltd (No 2)
[2013] NSWSC 863 Para 54

…portion of the ordered costs may be disallowed on assessment and to deduct a certain percentage; in Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863, Beech-Jones J deducted 70%. The percentage that is deducted reflects the fact that nearly all assessments of costs are reduced by costs assessors, wheth…
Simone Starr-Diamond v Talus Diamond (No 4)
[2013] NSWSC 811 Para 64

…vation of the costs assessment process, where an assessment will disadvantage the successful party in the litigation ( Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 at [8] per Slattery J).…
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 4)
[2011] NSWSC 720 Para 1

…till possible to seek a gross sum costs order even where a costs agreement is void ( Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720), that does not mean that the costs agreement should not even be provided. The purpose of gross sum costs being assessed by the judge is intended to…
Amos v Monsour Pty Ltd
[2009] QCA 65 Para 1

…purpose of gross sum costs being assessed by the judge is intended to be carried out based on similar kinds of information ( Amos v Monsour P/L & Ors [2009] QCA 65 at [28] ff), and the greater degree of informality is no excuse for failing to provide material that would be produced as a prerequisite for costs as…
Burk v Commonwealth of Australia
[2006] VSC 25 Para 2

…the contents of business activity statements filed subsequent to payment of the relevant invoices (see Merringtons Pty Ltd v Luxxotica Retail Pty Ltd [2006] VSC 25 at [10]; Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121 at [25]). As a solicitor, the plaintiff is likely to be registered for GST.…
Lemoto v Able Technical Pty Ltd
[2005] NSWCA 153 Para 9

…the board and case management methods to deal with this do not seem to be able to stop this. As long ago as 20005, in Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300, McColl JA warned that “satellite litigation” on costs can distort the merits of the case. Although that case related to the personal liability of a…
Fiduciary Ltd v Morningstar Research Pty Ltd
[2002] NSWSC 432 Para 36

…dings, in that the matter proceeding on pleadings involved a new “a new beginning”, relying upon Fiduciary Limited v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1; 55 ALR 1 at [18]:…
Bagley v Pinebelt Pty Ltd
[2000] NSWSC 830

…. Examples of this may be found in Charlie Brown Pty Ltd v Green (unreported, NSWSC, McLelland CJ in Eq, 3 July 1995) and Bagley v Pinebelt Pty Ltd [2000] NSWSC 830. 12 A second factor which may incline the court to order that costs be payable forthwith is some unreasonable conduct on the part of the party against…
Johnson v Department of Community Services (No 2)
[1999] NSWSC 1251 Para 43

…514 (where a defamation claim was summarily dismissed but a negligence claim remained on foot) and Johnson v Department of Community Services (No 2) [1999] NSWSC 1251 (where a plaintiff successfully appealed the striking out of a limitation claim: see the observations of Rolfe J concerning Oliver at [17]-[19]). Wha…
Gattellari v Meagher
[1999] NSWSC 1279

…le conduct on the part of the party against whom costs have been ordered. That was a factor taken into account by Simpson J in Gattellari v Meagher [1999] NSWSC 1279, although, in the end, her Honour did not think that the particular conduct warranted such an order. 13 A third factor is, as it was put by Giles J in…
[2002] FCAFC 51
[2002] FCAFC 51 Para 45

…t help him. A litigant in person is not immune from such an order, even where costs are awarded on an indemnity basis: Bhagat v Global Custodians Ltd [2002] FCAFC 51.…

Legislation cited in this decision · 1

Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 9)

Medium Neutral Citation:	Hunt v Al Halek [2020] NSWDC 541
Hearing dates:	11 September 2020
Date of orders:	11 September 2020
Decision date:	18 September 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The parties to bring in Short Minutes of Order reflecting each of the occasions upon which the plaintiff is liable to pay costs thrown away by reason of his amended pleading. (2) Plaintiff’s application for costs payable forthwith as a gross sum order is dismissed. (3) Parties’ costs to be cost in the cause.
Catchwords:	TORT – defamation – defendant in person provides two defences inadequately pleading justification – solicitor subsequently retained first retains and then drops the plea of justification while pleading qualified privilege – plea of triviality then abandoned as well – whether repeated amendments to pleadings warrants an order for costs to be assessed forthwith in a gross sum costs order – application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56 – 62, 98(4) Federal Court of Australia, Costs Practice Note (GPN-COSTS)
Cases Cited:	Alhalek v Quintiliani t/as Kells Lawyers [2020] FCA 1272 Amos v Monsour P/L & Ors [2009] QCA 65 Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994) Bell v Pentelow [2019] HCA 29; 93 ALJR 1007; 372 ALR 555 Bernstein v Poon, 2015 ONSC 2125 Bhagat v Global Custodians Ltd [2002] FCAFC 51 Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Fiduciary Limited v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1; 55 ALR 1 Ghosh v Miller (No 2) [2016] NSWSC 713. Hague v Cordiner(No 2) [2020] NSWDC 23 Hockey v Fairfax & Ors (No 2) [2015] FCA 750 Johnson v Department of Community Services (No 2) [1999] NSWSC 1251 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Mathews v Pigram [2020] NSWDC 526 McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734 Merringtons Pty Ltd v Luxxotica Retail Pty Ltd [2006] VSC 25 Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514 Opai v Culpan [2017] NZHC 1036, [2017] NZAR 1142 Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121 Petkovic v Koutalianos [2016] NSWSC 1817 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] FCA 955 Toben v Nationwide News Pty Ltd [2015] NSWSC 1784 at [109] Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720
Texts Cited:	The Hon Justice Murphy, “The Problem of Legal Costs: Lump Sum Costs Orders in the Federal Court”, Federal Court of Australia, 17 November 2017
Category:	Procedural and other rulings
Parties:	Plaintiff: John Richard Paul Hunt Defendant: Kyled Al Halek
Representation:	Counsel: Plaintiff: Mr T Senior Defendant: Ms A Tannous (solicitor) Solicitors: Plaintiff: Kylee Trevitt Legal Defendant: Company (Giles)
File Number(s):	2019/313938