Jannard v Dalituicama

Case [2021] QDC 278

DISTRICT COURT OF QUEENSLAND

CITATION:

Jannard v Dalituicama [2021] QDC 278

PARTIES:

JAMES JANNARD

(plaintiff)

v
EPI DALITUICAMA

(defendant)

FILE NO/S:

4974 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

16 November 2021

DELIVERED AT:

Brisbane District Court

HEARING DATE:

22 September 2020

JUDGE:

Sheridan DCJ

ORDERS:

1.   The plaintiff have leave to discontinue the proceedings.

2.   The plaintiff pay the defendant’s costs of the proceedings, excluding the defendant’s costs of the strike out application, but including the costs of this application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF OR WITHDRAWAL FROM PROCEEDING – where plaintiff seeking leave to wholly discontinue defamation proceedings – where discontinuance not opposed by both parties – where issue as to costs of the proceedings –   whether circumstances justify an order in favour of plaintiff or defendant or neither

Uniform Civil Procedure Rules 1999 (Qld), r 304, r 307, r 681

Bucknell v Robins [2004] QCA 474, cited
Commonwealth Bank of Australia v Daleport Pty Ltd(in rec) (No 6) [2019] NSWSC 958, cited
Fairfield Services Pty Ltd (In liquidation) & Anor v Leggett & Anor [2020] QSC 183, cited
One.Tel v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270, cited
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, cited
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6, cited
Re: Queensland Nickel Pty Ltd (In Liquidation) [2017] QSC 88, cited
Santer & Anor v Luddy [1993] QCA 217, cited
True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995 [2008] NSWLEC 221, cited
Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34, cited

COUNSEL:

G C Curtis for the plaintiff
A Morris QC for the defendant

SOLICITORS:

HWL Ebsworth for the plaintiff
Corney & Lind Lawyers for the defendant

Introduction

  1. This is an application brought by the plaintiff seeking leave to wholly discontinue the proceedings against the defendant and for an order that the defendant pay the plaintiff’s costs of the proceedings, or in the alternative, that there be no order as to costs of the proceedings.

Events in 2016

  1. The claim filed 18 December 2015 sought orders restraining the defendant from publishing matter defamatory of the plaintiff and matters similar or identical to those matters, damages and costs.

  2. The alleged defamatory matter was contained in a blog and petition site published by the defendant on 16 June 2015.  The effect of the blog was alleged to be that the plaintiff had unlawfully taken Vatuvara and Kaibu Islands (the Islands) from the Yacata People for his own commercial gain, used images of the Islands without permission, developed the Islands without concern for the local environment and exploited the Yacata People and marine resources for his own commercial gain.  The statement at the petition site was to…

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AGLC
Jannard v Dalituicama [2021] QDC 278
Case
[2021] QDC 278
Decision Date

CaseChat Overview and Summary

The case of Jannard v Dalituicama involves a plaintiff seeking leave to discontinue defamation proceedings against a defendant. The court was required to decide the issue of costs associated with the discontinuance of the proceedings. The plaintiff sought to discontinue the proceedings without opposition from the defendant but with a request that the defendant bear the costs of the proceedings. The defendant argued that the plaintiff should bear the costs of the proceedings, as the discontinuance was not due to any unilateral conduct on the part of the defendant.

The court considered the relevant legal principles in deciding the issue of costs. The court noted that in cases where one party has effectively surrendered to the other, there is usually a strong reason to award costs against the surrendering party. However, in cases where a supervening event removes or modifies the subject of dispute, it may be difficult to discern a clear reason why one party rather than the other should bear the costs. The court found that in this case, the plaintiff had taken steps to enlarge the scope of the factual issues in contention and had not pursued the proceedings with due diligence. The court also noted that the defendant had taken down the blog in response to pressure from the plaintiff, which was unrelated to the proceedings.

The court held that the plaintiff should bear the costs of the proceedings. The court found that the plaintiff had not pursued the proceedings with due diligence and had taken steps to enlarge the scope of the factual issues in contention. The court also noted that the defendant had taken down the blog in response to pressure from the plaintiff, which was unrelated to the proceedings. The court ordered that the plaintiff pay the defendant’s costs of the proceedings, excluding the defendant’s costs of the strike out application, but including the costs of this application.

Orders

Orders of the court

1. The plaintiff have leave to discontinue the proceedings.

2. The plaintiff pay the defendant’s costs of the proceedings, excluding the defendant’s costs of the strike out application, but including the costs of this application.

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

Relevant in this respect were the further observations by Bond J to the effect that in evaluating relevant considerations there is a distinction between cases where one party has effectively surrendered to the other and cases where a supervening event removes or modifies the subject of dispute.[7] It was said that in the former type of case, the surrender or capitulation will usually provide a strong reason to award costs against the party who has surrendered or capitulated.[8] In the latter type of case there may be difficulty in discerning a clear reason why one party rather than the other should bear the costs, and that might provide a good reason to decide that each party should bear their own costs.[9] [7]Fairfield at [23] citing One.Tel v Deputy Commissioner of Taxation (2000) 101 FCR 548 at [6].[8]Fairfield at [23] citing Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34 at [12].[9]Fairfield at [23] citing as examples Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin(1997) 186 CLR 622; Commonwealth Bank of Australia v Daleport Pty Ltd(in rec) (No 6) [2019] NSWSC 958; and True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995 [2008] NSWLEC 221.Consideration In support of an order for costs, counsel for the plaintiff submitted that the operative reason for the proceedings not being pursued was the unilateral conduct of the defendant in withdrawing the publications prior to any order being made; a matter which it was said was entirely in the hands of the defendant and amounted effectively to a surrender by the defendant. It was submitted that the plaintiff should not be criticised, and deprived of his costs, for deciding not to pursue his claim for damages when circumstances changed. The problem with this submission is that shortly after the proceedings were commenced the defendant said he agreed to withdraw the blog and was met with an offer containing terms that extended well beyond the relief the plaintiff might have obtained in any proceedings; consistent with what the defendant pleads were the real purpose of the proceedings. The defendant did take down the blog early after proceedings were commenced, but did so in response to pressure being applied by the plaintiff, again in a respect which was also unrelated to the proceedings. In addition, the plaintiff brought an application with respect to the defendant’s pleading; which was essentially to require the pleading of more material facts and the ultimate effect of which was to enlarge considerably the scope of the factual issues in contention. Despite the amended defence, no reply was ever filed. Despite being provided with a list of documents, the plaintiff decided to take no further step in the proceedings. Despite becoming aware that the defendant had taken down the blog, the plaintiff left proceedings on foot for an injunction and for a total of $250,000 in damages. Even when offering shortly prior to this application to discontinue the proceedings with each party bearing their own costs, the plaintiff sought an undertaking that the defendant would not publish further matter concerning the plaintiff.