Mohareb v Palmer (No 2) - [2015] NSWDC 141

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Mohareb v Palmer (No. 2) [2015] NSWDC 141
Hearing dates: 5 June 2015
Date of orders: 30 July 2015
Decision date: 30 July 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to s 61 Civil Procedure Act 2005 (NSW), these proceedings are dismissed and all previous costs orders are vacated.
(2) Defendants’ notice of motion filed on 19 May 2015 (for orders pursuant to s 73 Civil Procedure Act 2005 (NSW)) dismissed with no order as to costs.
(3) The plaintiff’s notice of motion of 29 May 2015 (seeking leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW)) is dismissed.
(4) The plaintiff is to pay the defendants’ costs in relation to his notice of motion of 29 May 2015 on an indemnity basis.
(5) The defendants’ application for a lump sum costs order (pursuant to s 98 Civil Procedure Act 2005 (NSW)) is dismissed, as is any application by the plaintiff for reimbursement of any disbursement to which he may be entitled as a litigant in person.

Catchwords: TORT - practice and procedure - parties enter into settlement of defamation proceedings which solely required (apart from costs issues) publication by the defendants of an apology on Facebook within 14 days of the deed being signed - apology removed from Facebook on same day as lodgement - plaintiff refuses to sign Notice of Discontinuance on the basis that the terms of the deed had not been complied with - whether defendants entitled to an order pursuant to s 73 Civil Procedure Act 2005 (NSW) that the proceedings were settled - whether a second removal of the apology by the first defendant amounted to non-compliance with the terms of settlement - apology belatedly published on Facebook six weeks later - parties still wished to compromise proceedings for an apology - plaintiff now dissatisfied with the form (but not the wording) of the apology - consideration of s 61 Civil Procedure Act and Saltearn v Saltearn [2015] NSWSC 582 - defendants' belated publication of the apology sufficient basis to warrant the proceedings being dismissed under s 61
PERJURY - plaintiff's application for leave to to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW) - plaintiff's notice of motion dismissed
COSTS - defendants' application for indemnity costs and a gross sum costs order under s 99 Civil Procedure Act - plaintiff to pay defendants' costs of his notice of motion to prosecute the first defendant to be paid on an indemnity basis, but the defendants otherwise to pay his or her own costs
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 61, 73 and 98
Crimes Act 1900, s 338(1)(c)
Cases Cited: Bleyer v Google Inc (2014) 311 ALR 529
Freeburn v Cake Decorators Association (NSW) Inc (No 2) (2014) 19 DCLR (NSW) 232
Masters v Cameron (1954) 91 CLR 353
Mohareb v Palmer [2015] NSWDC 134
Moss v…

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.

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Details

Case: [2015] NSWDC 141
Decision Date: 30 July 2015

CaseChat Overview and Summary

The defendants, Mohareb, brought an application to the Supreme Court of New South Wales seeking an order that the defamation proceedings brought by the plaintiff, Palmer, were settled and dismissed. The proceedings were settled by a deed which required the defendants to publish an apology on Facebook within 14 days of the deed being signed. The defendants published the apology on the same day they signed the deed, but it was removed the same day as the lodgement of the settlement deed. The plaintiff refused to sign a Notice of Discontinuance on the basis that the terms of the deed had not been complied with. The defendants subsequently published the apology six weeks later, but the plaintiff was dissatisfied with the form of the apology. The plaintiff also sought leave to prosecute the first defendant for perjury, and the defendants sought indemnity costs and a gross sum costs order.

The court was required to decide whether the defendants were entitled to an order pursuant to s 73 of the Civil Procedure Act 2005 (NSW) that the proceedings were settled and whether a second removal of the apology by the first defendant amounted to non-compliance with the terms of settlement. The court was also required to decide whether the plaintiff's application for leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW) should be granted and whether the defendants were entitled to indemnity costs and a gross sum costs order.

The court held that the defendants' belated publication of the apology was sufficient to warrant the proceedings being dismissed under s 61 of the Civil Procedure Act 2005 (NSW). The court found that the defendants had substantially complied with the terms of the settlement deed and that the plaintiff had acted unreasonably in refusing to sign the Notice of Discontinuance. The court dismissed the plaintiff's application for leave to prosecute the first defendant for perjury and held that there were no grounds for an order for indemnity costs or a gross sum costs order.

The court ordered that the proceedings be dismissed and all previous costs orders be vacated. The defendants' notice of motion for orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) was dismissed with no order as to costs. The plaintiff's notice of motion seeking leave to prosecute the first defendant for perjury was also dismissed, and the plaintiff was ordered to pay the defendants' costs in relation to that notice of motion on an indemnity basis. The defendants' application for a lump sum costs order was dismissed, as was any application by the plaintiff for reimbursement of any disbursement to which he may be entitled as a litigant in person.

Orders

Orders of the court

(1) Pursuant to s 61 Civil Procedure Act 2005 (NSW), these proceedings are dismissed and all previous costs orders are vacated.

(2) Defendants’ notice of motion filed on 19 May 2015 (for orders pursuant to s 73 Civil Procedure Act 2005 (NSW)) dismissed with no order as to costs.

(3) The plaintiff’s notice of motion of 29 May 2015 (seeking leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW)) is dismissed.

(4) The plaintiff is to pay the defendants’ costs in relation to his notice of motion of 29 May 2015 on an indemnity basis.

(5) The defendants’ application for a lump sum costs order (pursuant to s 98 Civil Procedure Act 2005 (NSW)) is dismissed, as is any application by the plaintiff for reimbursement of any disbursement to which he may be entitled as a litigant in person.

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.

Medium Neutral Citation:	Mohareb v Palmer (No. 2) [2015] NSWDC 141
Hearing dates:	5 June 2015
Date of orders:	30 July 2015
Decision date:	30 July 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to s 61 Civil Procedure Act 2005 (NSW), these proceedings are dismissed and all previous costs orders are vacated. (2) Defendants’ notice of motion filed on 19 May 2015 (for orders pursuant to s 73 Civil Procedure Act 2005 (NSW)) dismissed with no order as to costs. (3) The plaintiff’s notice of motion of 29 May 2015 (seeking leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW)) is dismissed. (4) The plaintiff is to pay the defendants’ costs in relation to his notice of motion of 29 May 2015 on an indemnity basis. (5) The defendants’ application for a lump sum costs order (pursuant to s 98 Civil Procedure Act 2005 (NSW)) is dismissed, as is any application by the plaintiff for reimbursement of any disbursement to which he may be entitled as a litigant in person.
Catchwords:	TORT - practice and procedure - parties enter into settlement of defamation proceedings which solely required (apart from costs issues) publication by the defendants of an apology on Facebook within 14 days of the deed being signed - apology removed from Facebook on same day as lodgement - plaintiff refuses to sign Notice of Discontinuance on the basis that the terms of the deed had not been complied with - whether defendants entitled to an order pursuant to s 73 Civil Procedure Act 2005 (NSW) that the proceedings were settled - whether a second removal of the apology by the first defendant amounted to non-compliance with the terms of settlement - apology belatedly published on Facebook six weeks later - parties still wished to compromise proceedings for an apology - plaintiff now dissatisfied with the form (but not the wording) of the apology - consideration of s 61 Civil Procedure Act and Saltearn v Saltearn [2015] NSWSC 582 - defendants' belated publication of the apology sufficient basis to warrant the proceedings being dismissed under s 61 PERJURY - plaintiff's application for leave to to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW) - plaintiff's notice of motion dismissed COSTS - defendants' application for indemnity costs and a gross sum costs order under s 99 Civil Procedure Act - plaintiff to pay defendants' costs of his notice of motion to prosecute the first defendant to be paid on an indemnity basis, but the defendants otherwise to pay his or her own costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 61, 73 and 98 Crimes Act 1900, s 338(1)(c)
Cases Cited:	Bleyer v Google Inc (2014) 311 ALR 529 Freeburn v Cake Decorators Association (NSW) Inc (No 2) (2014) 19 DCLR (NSW) 232 Masters v Cameron (1954) 91 CLR 353 Mohareb v Palmer [2015] NSWDC 134 Moss v…