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Metcalf v Wellington

Metcalf v Wellington

Case [2024] VSCA 147 26 June 2024

Stay of Proceedings

Taxation of Costs

Compensatory Damages

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0049

KIRSTY METCALF	Applicant
v
HEATHER WELLINGTON	Respondent

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JUDGES:	BEACH and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2024
DATE OF JUDGMENT:	26 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 147
JUDGMENT APPEALED FROM:	[2022] VCC 1759 (Judge Clayton)

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PRACTICE AND PROCEDURE – Stay – Application for stay of taxation of costs order made by trial judge – Whether special or exceptional circumstances exist – Judgment sum already paid by defendant to plaintiff – Whether taxation of costs should be stayed pending appeal – Whether payment of costs into interest bearing controlled money account sufficient to protect defendant’s position.

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Counsel
Applicant:		Mr SK Wilson KC with Mr TJ Mullen and Ms H Jager
Respondent:		Mr DP Gilbertson KC with Mr JE McIntyre
Solicitors
Applicant:	LA Warren Lawyers
Respondent:	Verduci Lawyers

BEACH JA
LYONS JA:

Heather Wellington (‘the plaintiff’) is a local councillor on the Surf Coast Shire Council. Kirsty Metcalf (‘the defendant’) is a ratepayer in the Surf Coast Shire.
In 2021, the plaintiff commenced a County Court proceeding against the defendant claiming damages for defamation in respect of seven posts published by the defendant on a Facebook page. On 21 November 2022, following a nine day trial in August 2022, the trial judge gave judgment for the plaintiff in the sum of $100,000.[1]
[1]Wellington v Metcalf [2022] VCC 1759 (‘Reasons’).
In the course of her reasons, the judge concluded that six of the publications on the defendants’ Facebook page conveyed 13 imputations concerning the plaintiff which were defamatory (including imputations of dishonesty and corruption).[2] In giving judgment for the plaintiff, the judge rejected the defendant’s truth defence;[3] rejected the defendant’s statutory qualified privilege defence;[4] rejected the defendant’s Lange[5] qualified privilege defence;[6] rejected the defendant’s reply to attack qualified privilege defence;[7] rejected the defendant’s common law qualified privilege defence;[8] and concluded that, in any event, the defendant had been ‘motivated by malice’, because her conduct was ‘so reckless and so unreasonable as to amount to malice’.[9] In the reasons, the judge described the plaintiff as ‘an impressive witness’,[10] but said that the defendant was ‘not a reliable witness’.[11]
[2]Ibid.
[3]Ibid [323]–[417].
[4]Ibid [418]–[478].
[5]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[6]Reasons [479]–[492].
[7]Ibid [493]–[534].
[8]Ibid [535]–[541].
[9]Ibid [542].
[10]Ibid [237]–[253].
[11]Ibid [254]–[265].
On 15 December 2022, her Honour ordered the defendant to pay the plaintiff’s costs of the proceeding on an indemnity basis (‘indemnity costs order’).
On 21 December 2022, the defendant paid the plaintiff the $100,000 she had been ordered to pay by way of damages.
On 18 September 2023, the plaintiff’s solicitors sent the defendant’s solicitors a bill of costs totalling $664,674.60, of which the amount of $361,383.76 was for disbursements. On 25 March 2024, the defendant filed and served a notice of objections. On 2 April 2024, the plaintiff filed and served a response to the notice of objections. On 8 April 2024, the Costs…

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 Metcalf v Wellington

Details

AGLC: Metcalf v Wellington [2024] VSCA 147
Case: [2024] VSCA 147
Decision Date: 26 June 2024

CaseChat Overview and Summary

In the case of Metcalf v Wellington, the plaintiff sought a stay of the taxation of a costs order made by the trial judge, arguing that special or exceptional circumstances existed to warrant such a stay. The dispute arose from a litigation process in which the judgment sum had already been paid by the defendant to the plaintiff. The central issue before the court was whether the taxation of costs should be stayed pending an appeal and whether the payment of costs into an interest-bearing controlled money account was sufficient to protect the defendant's position.

The court considered the relevant legal principles concerning stays of taxation of costs and the factors that may constitute special or exceptional circumstances. It examined the nature of the appeal and the likelihood of its success, the potential prejudice to the parties, and the adequacy of the security for costs. The court also assessed whether the payment of costs into an interest-bearing controlled money account would sufficiently protect the defendant's position in the event the appeal was unsuccessful.

After evaluating these factors, the court determined that the defendant had not demonstrated special or exceptional circumstances warranting a stay of the taxation of costs. The court held that the payment of costs into an interest-bearing controlled money account was a sufficient safeguard for the defendant’s position. Consequently, the application for a stay was dismissed, and the taxation of costs proceeded as ordered by the trial judge. The court's decision emphasised the importance of adequate security for costs and the need for the defendant to demonstrate exceptional circumstances to warrant a departure from the usual course of proceedings.

Orders