Khochaiche v Kamaleddine - [2009] NSWSC 1219

CITATION: Khochaiche v Kamaleddine [2009] NSWSC 1219

HEARING DATE(S): 5 November 2009

JUDGMENT DATE :
20 November 2009

JUDGMENT OF: Davies J

DECISION: (1) The First and Second Defendants are to pay the Plaintiffs’ costs up to and including 3 September 2009. (2) The Second Defendant is to pay the Plaintiffs’ costs from 4 September 2009 to the conclusion of the proceedings. (3) The Second Defendant is to pay the costs of the application for costs.

CATCHWORDS: PROCEDURE - costs - proceedings for injurious falsehood and defamation - anonymous publication - application for preliminary discovery - Respondents to preliminary discovery application also Defendants in the proceedings - late admission by the author of the publication - threat by other Defendant to republish - who should pay the costs of proceedings which settled before final hearing.

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Consequential orders

CASES CITED: Naoum v Dennawi [2009] NSWCA 253
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796
Totalise plc v Motley Fool Ltd [2003] 1 All ER 872

PARTIES: Hassan Khochaiche (First Plaintiff)
Corporate Conquest Pty Ltd t/as Turtle Tots Childcare (Second Plaintiff)
Anita Kamaleddine (First Defendant)
Marian Faeeh also known as Marian Beydoun (Second Defendant )

FILE NUMBER(S): SC 14248/09

COUNSEL: A T S Dawson (Plaintiffs)
S T Chrysanthou & P Maddigan (Defendants)

SOLICITORS: Banki Haddock Fiora (Plaintiffs)
Mitry Lawyers (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

20 NOVEMBER 2009

14248/09 KHOCHAICHE & ANOR v KAMALEDDINE & ANOR

JUDGMENT

1 The Second Defendant Marian Faeeh, also known as Marian Beydoun (Mrs Beydoun) sent her children to the Turtletot Childcare Centre run by the Second Plaintiff, a company whose principal was the First Plaintiff, Hassan Khochaiche.

2 Mrs Beydoun made a series of complaints about matters concerning the Child Care Centre and her children between March and July 2009. On 14 July 2009, Mr Kochaiche terminated Mrs Beydoun’s children’s care at the Centre.

3 On 17 July 2009 the First Defendant, Anita Kamaleddine, went to the Centre to ask Mr Kochaiche to reconsider his decision to exclude Mrs Beydoun’s children from the Centre.

4 On 5 August 2009 Mrs Beydoun sent an email to Mr Kochaiche’s wife concerning the treatment of “a parent of 2 children” but did not identify herself as the sender of the email. On 5 and 14 August 2009, Mrs Beydoun, using different email identities and a name other than her own, posted various negative material about the Centre on an internet chat forum known as “Childcare Chat”.

5 On 28 August 2009 Mrs Beydoun sent an email to parents of children attending the Centre using one of the email addresses she had used to post comments in the chat room. The email said this:

“Hi all,

Due to the large number of parents requesting from me information and answers to queries regarding Turtletot, I have decided to send you an email to inform you of what is really happening in…

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 Khochaiche v Kamaleddine

Details

AGLC: Khochaiche v Kamaleddine [2009] NSWSC 1219
Case: [2009] NSWSC 1219
Decision Date: 20 November 2009

CaseChat Overview and Summary

In the case of Khochaiche v Kamaleddine, the matter came before the court following proceedings for injurious falsehood and defamation involving anonymous publications. The plaintiff sought a preliminary discovery order to ascertain the identity of the author of the publications. The respondents to the preliminary discovery application were also the defendants in the main proceedings. During the course of the litigation, the author of the publication belatedly admitted authorship, and another defendant threatened to republish the defamatory content. The primary focus of the court was to determine the appropriate party responsible for the costs incurred throughout the litigation, which had settled before a final hearing was conducted.

The court was required to address the legal issues surrounding the allocation of costs when the proceedings settle before a final determination. Key considerations included the timing of the admission of authorship, the threat of further publication by another defendant, and the circumstances surrounding the settlement of the case. The court had to determine whether the plaintiff or the defendants should bear the costs of the preliminary discovery proceedings, as well as the overall costs of the litigation.

In reaching its decision, the court considered the conduct of all parties involved in the litigation. The court found that the plaintiff was entitled to costs from the respondents, as the settlement did not absolve the defendants of their liability for the costs incurred. The court emphasised that the late admission of authorship and the threat of further publication by another defendant were significant factors that warranted the plaintiff recovering costs from the defendants. The court also acknowledged the plaintiff's proactive role in pursuing the discovery of the author and the defamatory nature of the publications.

The final orders of the court required the respondents to pay the costs of the preliminary discovery application and the overall litigation costs, reflecting the court's determination that the defendants were responsible for the expenses incurred. The court's decision underscored the importance of timely disclosure and the consequences of threats to republish defamatory material, highlighting the plaintiff's entitlement to recover costs in such circumstances.

Orders