Saraceni v Mentha
[2013] WASC 95 (S)
•25 JUNE 2013
SARACENI -v- MENTHA [2013] WASC 95 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 95 (S) | |
| Case No: | CIV:2734/2012 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 25/06/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Taxed costs ordered in favour of defendants | ||
| B | |||
| PDF Version |
| Parties: | LUKE SARACENI MARK MENTHA SCOTT LANGDON KORDAMENTHA PTY LTD |
Catchwords: | Costs Strike out applications Plaintiff's imputations deficient Cost orders Turns on own facts |
Legislation: | Nil |
Case References: | Saraceni v Mentha [2013] WASC 95 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARK MENTHA
First defendant
SCOTT LANGDON
Second defendant
KORDAMENTHA PTY LTD
Third defendant
Catchwords:
Costs - Strike out applications - Plaintiff's imputations deficient - Cost orders - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Taxed costs ordered in favour of defendants
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First defendant : No appearance
Second defendant : No appearance
Third defendant : No appearance
Solicitors:
Plaintiff : Bennett + Co
First defendant : Norton Rose Australia
Second defendant : Norton Rose Australia
Third defendant : Norton Rose Australia
Case(s) referred to in judgment(s):
Saraceni v Mentha [2013] WASC 95
(Page 3)
1 KENNETH MARTIN J: Subsequent to publication of my reserved reasons on the mutual strike out applications by the parties against their respective pleadings in this defamation action, the parties remain in disagreement over the appropriate costs outcomes for the applications. This resulted in the parties requesting the issue of costs be resolved on the papers, with each side to file written submissions to support their conflicting positions.
2 There followed the plaintiff's written submissions of 13 May 2013 and the defendants' submissions of 20 May 2013. The defendants also filed an affidavit of Dylan Christopher McKimmie of 20 May 2013, in support of their position.
3 In my reserved reasons I concluded at [91]:
Conclusion
The plaintiff's imputations will be struck out with leave to amend. On balance, the defendants have been substantially successful in this application on the major issue that occupied the Court's time and prima facie should have their taxed costs of the application. If the parties are unable to agree upon a minute of orders then the defendants should provide their minute of orders of the court within 14 days of publication of these reasons.
4 The defendants' written submissions seek to entrench the prima facie taxed costs outcome favourable to them I foreshadowed for the applications. The defendants say they were substantially successful on the major pleading issue which underlay both strike out applications - namely, the common conceptual flaw in formulation of two of the plaintiff's (three) imputations - drawn as tied to the so-called 'joint financiers of a Vasse Newtown project': see Saraceni v Mentha [2013] WASC 95 [26].
5 In my reasons I assessed that formulation by the plaintiff, tying his imputations to the 'joint financiers of a Vasse Newton project', as misconceived, when assessed by reference to the terms of the 'Utterance' and 'Media Release' as complained of in the publications. Proper, natural and ordinary meaning imputations, if pursued, could instead refer to the 'joint financiers of Raine Square': see Saraceni v Mentha [28] - [30].
6 I attempted to relate at [91] that this major issue had been diverting, and had essentially consumed the significant component of the court's time at the joint argument of both applications.
(Page 4)
7 The foundational point of any defamation action is the formulation of the plaintiff's imputations. The alleged imputations provide the opening parameters for all that follows to trial. Defamation defences such as justification, fair comment, Polly Peck scenarios or the like, must all be raised in reference to the plaintiff's imputations. A fundamental defect in the plaintiff's imputations is likely to generate 'knock-on' consequences that may carry over to undermine the utility of pleaded defences and also detract from a proper focus upon the true issues in a subsequent running of a trial.
8 The plaintiff's written submissions of 13 May 2013 seek to contend the costs of these mutual pleading strike out applications be in the cause, bearing in mind the plaintiff did enjoy a measure of success on certain other pleading issues (as explained in my reasons). The plaintiff's submissions (par 17) go to some length to point out areas in my reasons where I address other aspects of the interlocutory applications and reached outcomes favouring the plaintiff. In all those circumstances, it is put that the plaintiff ought not be burdened now with responsibility for all taxed costs of the strike out applications.
9 But an evaluation as to a costs outcome is not arithmetic in character as regards counting wins and losses. As a matter of overall impression, I am of the view the significant component of these strike out evaluations, from the holistic perspective of time consumed, overall significance and the degree of intellectual engagement required in resolving aspects of the dispute, was the imputation fight. That is, the heart of the matter concerned a defective formulation of the plaintiff's (false) innuendo meanings because these imputations had been wrongly tied to the joint financiers of a Vasse Newtown project. That problem sent matters 'off the rails' early and everything else was 'window dressing'.
10 The central contested issue over imputations could not be consensually overcome. The argument, which the plaintiff ultimately lost, showcased what was the fundamental conceptual disagreement to be resolved by the court. Its resolution delivered carryover implications for the following pleadings. The other issues I dealt with were essentially lesser accoutrements to that main event.
11 The defendants were ultimately vindicated on a challenge to two of the plaintiff's three imputations, correlatively deflecting the plaintiff's attack on its pleaded defence.
(Page 5)
12 Therefore, in all the circumstances, I am of the view that the prima facie costs outcome position I foreshadowed at [91] of my reasons should be confirmed.
13 Costs orders favouring the defendants should follow accordingly, as regards both sides' interlocutory applications, on the basis that the defendants were substantially successful on the strike out applications heard together.
14 The defendants should exchange and file a minute of orders for these interlocutory applications within seven days which gives effect to these supplementary reasons.
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