Mohareb v Palmer (No 2)

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.