Sarina & Anor v O'Shannassy (No.2)

[2019] FCCA 2802

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARINA & ANOR v O'SHANNASSY (No.2) [2019] FCCA 2802

Catchwords:
DEFAMATION – PRACTICE AND PROCEDURE – First applicant had commenced concurrent defamation proceedings in the District Court after he had commenced a proceeding in the Federal Circuit Court that included the same claim for defamation – no abuse of process – whether the applicants have reasonable prospects of success in relation to four imputations given the availability of a possible defence under s.29 of the Defamation Act 2005 (NSW) – whether certain imputations are capable of being conveyed by the publication of the defamatory matter on which applicants rely – whether respondent should pay costs thrown away by adjournment of application in a case.

Legislation:

Defamation Act 2005 (NSW) s.29

Cases cited:

Burbank Australia Pty Ltd v Luzinat [2000] VSC 128

Faruqi v Latham [2018] FCA 1328

Palmer-Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69

R v Fischetti (No 5) [2016] ACTSC 213

Reynolds v Reynolds [1977] 2 NSWLR 295

Sarina & Anor v O'Shannassy [2019] FCCA 732

Sarina v O’Shannassy [2019] NSWDC 246

First Applicant: CLINTON SARINA

Second Applicant: MARTIN GREEN

Respondent: JOHN O'SHANNASSY

File Number: SYG 1339 of 2018

Judgment of: Judge Manousaridis

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Sydney

Delivered on: 4 October 2019

REPRESENTATION

Counsel for the Applicants: Mr R Rasmussen

Solicitors for the Applicants: Kalantzis Lawyers

Counsel for the Respondent: Mr T Crispin

Solicitors for the Respondent: Lloyd & Lloyd Solicitors

ORDERS

1. The application in a case filed on 19 August 2019 by the respondent is dismissed.

2. The respondent pay the applicants’ costs of the application in a case referred to in order 1, including the applicants’ costs thrown away because of the adjournment of the hearing of the application in a case on 30 August 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1339 of 2018

CLINTON SARINA

First Applicant

MARTIN GREEN

Second Applicant

And

JOHN O'SHANNASSY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these reasons for judgment I consider three questions. The first is whether, in the circumstances I describe later in these reasons, the applicants’ bringing or maintaining their claims for defamation in this Court constitute an abuse of process. The second is whether a number of the imputations pleaded in the amended statement of claim disclose a reasonable cause of action or otherwise are reasonably capable of arising out of the publication on which the applicants rely. The third question is whether the respondent, Mr O’Shannassy, should pay the costs thrown away because of the adjournment of the hearing of the first two questions that had been set down on 30 August 2019.

2. These reasons for judgment assume familiarity with the reasons for judgment I published on 29 March 2019 (earlier reasons).[1]

   [1] Sarina & Anor v O'Shannassy [2019] FCCA 732

Abuse of process?

1. The ground on which Mr O’Shannassy claims the defamation proceedings brought by the applicants are an abuse of process is that the first applicant, Mr Sarina, had commenced concurrent defamation proceedings in the District Court of New South Wales on 19 December 2018 (District Court proceedings) and that, on 9 May 2019, Mr Sarina discontinued those proceedings. Mr O’Shannassy also relies on a judgment delivered by Gibson DCJ on 12 June 2019 in which her Honour ordered that Mr Sarina pay the costs of Mr O’Shannassy on an indemnity basis.[2] Her Honour made that order on the basis of a finding that Mr Sarina abused the process of the District Court by commencing the District Court proceedings.

   [2] Sarina v O’Shannassy [2019] NSWDC 246

2. In his written submissions Mr O’Shannassy refers to the judgment of Gibson DCJ, and to her Honour’s findings that the District Court proceedings were an abuse of process. Mr O’Shannassy submits that the prejudice he suffered by Mr Sarina having commenced the District Court proceedings, namely, the incurring of costs, “has not yet been ameliorated”; and that, until that prejudice is ameliorated, the proceeding in this Court should not continue, at least not without the applicants being ordered to provide security to cover the costs Mr O’Shannassy incurred in the District Court proceedings.

3. Counsel for Mr O’Shannassy submitted that the mere fact that two proceedings have been commenced concurrently had the consequence that both proceedings are an abuse of process, and continue to be an abuse until the applicant elects which of the two proceeding he or she wishes to abandon. Counsel relied on the following passage from the judgment of Beach J in Burbank Australia Pty Ltd v Luzinat:[3]

   Where a party to a proceeding institutes a second proceeding in a different form in relation to the same subject matter as the first proceeding, prima facie the second proceeding is vexatious and will be stayed. . . .  In such a situation the courts have for many years taken the view that a litigant already deeply involved in one piece of litigation would be unduly harassed if a second piece of litigation were to proceed at the same time as the first . . . .

   [3] [2000] VSC 128, [28], [29]

4. Counsel for Mr O’Shannassy also relied on the following passage from the judgment of Waddell J in Reynolds v Reynolds:[4]

   The general principle in relation to proceedings in two courts in the one country stated by the Court of Appeal in McHenry v Lewis [(1882) 22 Ch. D. 397]. . . . In such cases the existence of two proceedings is considered prima facie vexatious, and the court will generally, as of course, put the plaintiff to his election and stay one of the proceedings; or it may, as in the latter case, stay the proceedings which it considers to be inappropriate.

   [4] [1977] 2 NSWLR 295, at page 306

5. Counsel for the applicants makes a number of submissions. First, there would be no utility in making any order based on a finding that Mr Sarina abused the process of the District Court by commencing the duplicate defamation proceedings in that Court because Mr Green, the other applicant in the proceeding in this Court, was not a party to the District Court proceedings. Second, although an order for costs in the District Court proceedings has been made against Mr Sarina, those costs have not been assessed, and Mr O’Shannassy has not applied for security for the payment of those costs on the ground that Mr Sarina is unable to pay them. Third, the authorities on which Mr O’Shannassy relies are to the effect that where two proceedings are on foot in relation to the one claim, the claimant is put to his or her election about which proceeding he or she is to abandon. Mr Sarina has made that election by discontinuing the District Court proceedings. Finally, that Mr Sarina has been found to have abused the process of the District Court does not mean that his having made a claim for defamation in this Court constitutes an abuse of process of this Court.

6. I do not accept that Mr Sarina’s having made a claim, or his now intending to maintain a claim, for defamation in this Court constitutes an abuse of process of this Court. Gibson DCJ’s finding of abuse of process is limited to the District Court proceedings. In my earlier reasons I had already found that Mr Sarina did not fabricate federal claims to bring his defamation claims within the jurisdiction of this Court; and at the time Mr Sarina commenced the proceeding in this Court he had not commenced any concurrent defamation proceeding in another court. Further, assuming Mr Sarina’s having commenced the proceeding in the District Court rendered his desire to continue with the same defamation claims in this Court an abuse of the process of this Court, Mr Sarina exercised the election that arose by having commenced concurrent proceedings by discontinuing the District Court proceedings. In other words, that which might have rendered the continuation of the defamation proceeding in this Court an abuse – a concurrent proceeding in the District Court – has now been removed; and the defamation claims now before this Court cannot constitute an abuse of the process of this Court. Finally, given Gibson DCJ found that Mr Sarina abused the process of the District Court, any remedies for such abuse in addition to ordering costs on an indemnity basis, or any remedies in relation to the recovery of those costs, are matters for the District Court, not this Court.

Unarguable imputations?

1. As a consequence of my earlier reasons, I granted the applicants leave to replead certain imputations. The applicants took advantage of that leave by filing an amended statement of claim in which they pleaded additional imputations. Before I identify the relevant imputations, it would be useful to set out the matter that, by its publication, the applicants submit convey the imputations on which they rely. That matter is the email Mr O’Shannassy sent to Mr George and Mr Coleman on 20 December 2017 (Email):[5]

   [5] I have added the paragraph numbers. The errors are in the original.

   [1] I must apologise. I discovered that I had not completed the notification of my resignation as company secretary. I will do that over the next few days.

   [2] I again warn you of the nefarious nature of Martin Green and Clinton Sarina. I am giving you some information so that you can be fully informed.

   [3] I hear from a colleague Gary Stewart Martin Green is under investigation by the Legal Services Commissioners yet again. The issues is fraud. They are both in serious trouble so I would be very careful in any dealing with these rogues.

   [4] Clinton has court proceeding against him in the Supreme Court for what I am told fraud again. You need to make up your own minds on how you deal with Martin Green and Clinton Sarina. But I would google them booth. They have both been involved in a fraud matter in which one party went to gaol for 6 years and in which the judge said that id Martin Green gave evidence he would have gone to gaol as well.

   [5] I suggest you read the court judgment.

   [6] See links

   [7] See links

   [8]

   [9]

[Photograph]

McGurk duo linked to $150m loan fraud – SMH.com.au

THE murdered standover man Michael McGurk’s two closest confidants have been named as part of a massive investigation into an alleged $150 million mortgage fraud.

[10] align="left">[11] align="left">[12]http: align="left">[13] The above comments are post the court case

1. The following are the imputations pleaded in paragraph 18B of the amended statement of claim that Mr O’Shannassy submits disclose no reasonable cause of action or which could not reasonably have been conveyed by the Email:

   The said matter in its natural and ordinary meaning conveyed or was understood to have conveyed the following defamatory imputations:

   . . . .

   (3)The second applicant [Mr Green] is one of standover man Michael McGurk’s two closest confidants;

   (4)The second applicant [Mr Green] was knowingly involved in a $150m loan fraud;

   (5)The second applicant [Mr Green] has been charged with fraud;

   (6)The second applicant [Mr Green] would have gone to gaol if he had given evidence at his fraud trial;

   . . . .

   (9)The first applicant [Mr Sarina] is one of standover man Michael McGurk’s two closest confidants;

   (10)The first applicant [Mr Sarina] was knowingly involved in a $150m loan fraud;

   (11)The first applicant [Mr Sarina] has been charged with fraud;

   . . . .

   (14)The first applicant [Mr Sarina] went to gaol for 6 years.

Principles

1. In my earlier reasons I identified the principles for determining whether a pleaded imputation is reasonably capable of being conveyed by the matter published, and I do not need to repeat those principles. Counsel for the applicant relied on the principles stated in passage from the judgment of Wigney J in Faruqi v Latham:[6]

   The question whether a publication is capable of conveying a defamatory meaning is a question of law . . . . The question is whether the challenged defamatory meanings or imputations could reasonably be found by the tribunal of fact to have been conveyed by the publication. . . .  In this Court, the tribunal of fact is likely to be the trial judge, not a jury . . . .  In those circumstances, the utility of considering this issue on an interlocutory basis before trial is perhaps questionable . . . .

   In any event, the question is to be determined from the perspective of the ordinary reasonable reader (or listener or viewer, depending on the nature of the matter complained of).  It should be borne in mind, in that context, that ordinary readers draw implications much more freely than lawyers, especially when they are derogatory . . .

   Striking out a pleading, or part of it, on the basis that the publication was not capable of giving rise to the defamatory imputations alleged is a matter for the discretion of the judge hearing the application.  Such a step is not to be undertaken lightly, but only with great caution: the “fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion” . . . .

   The capacity determination is “an exercise in generosity not parsimony”: . . . In Corby, McColl JA (with whom Gleeson JA agreed) said (at [136]):

   One reason “great caution” is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that “no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be ‘perverse’ for any jury to do so’” . . . .

   The caution that should be exercised in considering whether to strike out a pleading, or part of it, in a defamation case based on a capacity determination, is consistent with the principles that apply generally to the striking out of pleadings pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case . . . . The Court is careful to ensure that it does not, in striking out a pleading, prevent a party from making a case that it is entitled to make . . . .

   [6] [2018] FCA 1328, [13]-[17]

Pleaded imputations 18B(3), 18B(4), 18B(9), and 18B(10)

1. Counsel for Mr O’Shannassy submits that these pleaded imputations – which allege that each of the applicants was one of standover man Michael McGurk’s two closest confidants, and that each of the applicants has been charged with fraud – do not arise from the text of the Email, but arise instead from linked articles published by the Sydney Morning Herald and the Daily Telegraph which, in turn, report proceedings in the Waverley Local Court. Counsel submits that, in these circumstances, s.29 of the Defamation Act 2005 (NSW) (Act) “provides a total defence of fair report of proceedings of public concern”. The first three subsections of s.29 of the Act are as follows:

   (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. 

   (2) It is a defence to the publication of defamatory matter if the defendant proves that: 

   (a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and 

   (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and

   (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. 

   (3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. 

2. It will be seen that the attack on paragraphs 18B(3), 18B(4), 18B(9), and 18B(10) is not that these imputations do not arise from the Email; the attack is that Mr O’Shannassy has a defence under s.29 of the Act which, if pleaded, the applicants would not have reasonable prospects of resisting.

3. The difficulty with Mr O’Shannassy’s seeking to strike out paragraphs 18B(3), 18B(4), 18B(9), and 18B(10) of the amended statement of claim on the basis of s.29 of the Act is that the onus of establishing a defence under s.29 of the Act lies on Mr O’Shannassy; and to be in a position to rely on that defence it is necessary to articulate with sufficient particularity the following matters:

   a)the proceedings of which the linked articles are said to constitute a fair report;

   b)the part or parts of the linked articles that contain the imputations conveyed by the Email;

   c)the subject matter of the proceedings it is alleged the articles fairly report; and

   d)the matters on which Mr O’Shannassy relies for claiming that the imputations conveyed by the articles are a fair report of the subject matter of the proceedings.

4. Mr O’Shannassy has not articulated, or articulated with sufficient particularity, any of these matters. I therefore do not accept that the applicants do not have reasonable prospects of establishing a cause of action in defamation based on the imputations pleaded in paragraphs 18B(3), 18B(4), 18B(9), and 18B(10) of the amended statement of claim because the Email records links to articles to which it is possible that s.29 of the Act may apply.

Pleaded imputation 18B(5)

1. Mr O’Shannassy submits the Email does not state that the second applicant, Mr Green, has been charged with fraud. It only alleges that Mr Green is under investigation, and that he had been involved in a previous fraud in which he has not given evidence. Counsel for the applicants, however, submits that when [3] and [4] of the Email are read together it is at the very least arguable that the ordinary reasonable reader in the position of the recipients of the Email would have understood that Mr Green was charged with a criminal offence.

2. I agree with the submissions of counsel for the applicants. [3] of the Email refers to Mr Green being the subject of an investigation for fraud; and [4] of the Email is reasonably capable of being read by an ordinary reasonable person as suggesting Mr Green was charged with Mr Sarina in a criminal matter involving fraud.

Pleaded imputation 18B(6)

1. This imputation is that Mr Green would have gone to gaol if he had given evidence at his fraud trial. Mr O’Shannassy submits the Email is not reasonably capable of conveying this imputation for two reasons. First, [4] of the Email does not in terms state Mr Green would have gone to gaol, had he given evidence; it only expresses the opinion of the judge of what would have happened had Mr Green given evidence. Second, and, Mr O’Shannassy submits, more importantly, the “fraud matter” in question is not “his fraud trial”, that is, Mr Green’s fraud trial, but rather the trial of another person who was subsequently imprisoned.

2. The Email, and in particular [4], is capable of conveying the imputation that Mr Green would have gone to gaol if he had given evidence at his fraud trial. That follows from the combined effect of the statements that: (a) “Clinton”, that is Mr Sarina, has court proceedings against him in the Supreme Court; they have both – that is Mr Sarina and Mr Green - been involved in a fraud matter; and (c) one party went to gaol for six years, and that the judge said that if Mr Green gave evidence he would have gone to gaol as well. From these three express statements it is reasonably arguable an ordinary reasonable reader would read the Email as conveying that there has been one criminal proceeding against Mr Sarina and Mr Green in which Mr Sarina went to gaol, and that a judge said Mr Green would have gone to gaol had he given evidence.

Pleaded imputation 18B(11)

1. This imputation is that Mr Sarina has been charged with fraud. Mr O’Shannassy submits the Email is not reasonably capable of conveying that imputation because, although [4] of the Email states Mr Sarina “has court proceedings against him in the Supreme Court for what I am told is fraud again”, there is nothing in the Email that suggests the nature of the proceeding. In particular the Email does not expressly state whether it is a criminal or a civil proceeding. That is true. But the impact on the ordinary reasonable reader of this part of [4] of the Email must be read with the rest of [4], and in particular, the reference to “gaol”. It is reasonably arguable that the ordinary reasonable reader would read [4] of the Email as referring to a criminal proceeding.

Pleaded imputation 18B(14)

1. This imputation is that Mr Sarina went to gaol for six years. In his written submissions Mr O’Shannassy submits this imputation is “particularly baffling”. He accepts the imputation could only arise if Mr Sarina and Mr Green were the only participants in the fraud stated in [4] of the Email; but Mr O’Shannassy submits it is extraordinarily difficult to read [4] as stating that only the applicants were participants in that fraud. I disagree. [4] of the Email refers only to Mr Sarina and Mr Green. It is reasonably arguable that an ordinary reasonable reader would read [4] as conveying the imputation that Mr Sarina and Mr Green were the only parties involved in the proceeding referred to, and, given it is claimed that [4] states that the judge said Mr Green would have gone to gaol had he given evidence, it is reasonably arguable that the ordinary reasonable reader would read “one party” as being a reference to Mr Sarina.

2. Mr O’Shannassy further submits that the Email contained a link to the judgment of the Australian Capital Territory in R v Fischetti (No 5);[7] and that had the ordinary reasonable reader followed that link it would have become immediately apparent that Fischetti (No 5) concerned the sentencing of a Mr Fischetti. This submission raises the question whether, when assessing whether the Email conveyed the imputation that Mr Sarina was gaoled for six years, the Email is to be read by reference to the text of the Email alone or by reference to both the Email and to information that is contained in a document that may be accessed by following the link identified in the Email. That in turn depends on the assumptions that must be made when assessing what the ordinary reasonable reader would do when reading the text of the Email. Should it be assumed that the ordinary reasonable reader would read the Email, and keep an open mind about the truth or otherwise of what the Email conveys until such time as the reader follows the link and reads the judgment? Or should it be assumed that the ordinary reasonable reader would accept the truth of what or otherwise give credit to what is asserted in the Email. It is reasonably arguable that the appropriate assumption would be that the ordinary reasonable reader would go no further than take at face value that which has been asserted in the Email without seeking to confirm the truth of what was asserted by following the link to the judgment in Fischetti (No 5).

   [7] [2016] ACTSC 213

Paragraph 20(e) of the amended statement of claim

1. Mr O’Shannassy also takes issue with paragraph 20(e) of the amended statement of claim that states the “applicants rely upon the grapevine effect”. Mr O’Shannassy submits this is defective in form, and that it is not explained how the “grapevine effect” could apply in the circumstances of this case where the defamatory publication has been made to two named recipients.

2. The “grapevine effect” was explained by Gummow J in Palmer-Bruyn & Parker Pty Ltd v Parsons as follows (footnotes omitted):[8]

   The expression “grapevine effect” has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton as follows:

   “It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.”

   [8] [2001] HCA 69, at [88]

3. I agree that the statement “the applicants rely upon the grapevine effect” does not constitute a proper pleading. The “grapevine effect”, however, is in truth a particular means of proving damages; and the statement “the applicants rely upon the grapevine effect” serves to give notice to Mr O’Shannassy that the applicants intend to rely on that principle to prove damage. The lack of generality of the statement, therefore, is to be cured, not by striking out paragraph 20(e) of the amended statement of claim, but by Mr O’Shannassy, at the appropriate time, seeking particulars of that paragraph of the amended statement of claim.

Costs of 30 August 2019

1. The matters I have considered so far have arisen from Mr O’Shannassy filing an application in a case. According to the information recorded in the application in a case, Mr O’Shannassy, through his lawyer, lodged the application in a case electronically at 4:39:06 pm on 16 August 2019. The application in a case was accepted as filed at 2:52:56 pm on 19 August 2019. The “Filing and Hearing Details” section of the application in a case states that the application in a case was set down for hearing at 10:15 am on 30 August 2019.

2. At 10:15 am on 30 August 2019 there was no appearance by or on behalf of Mr O’Shannassy. After the solicitor for the applicant telephoned him, Mr O’Shannassy’s solicitor, Mr See, appeared. He informed me the Court had not notified his office that the application in a case had been set down for hearing on 30 August 2019. I adjourned the hearing of the application in a case and reserved the question of costs. I directed Mr See to file the evidence on which he would intend to rely for claiming he had not been informed of the time and date of the hearing of the application in a case.

3. In an affidavit he made on 4 September 2019 Mr See deposed that at 4:51 pm on 16 August 2019 a paralegal of his office lodged for filing with the Court the application in a case. The application in a case was initially lodged incorrectly, but then was lodged correctly at 4:39 pm. When lodged, the paralegal sent an email to the applicants’ lawyers attaching the application in a case and an affidavit. The email stated that the documents had been lodged for filing “and we are awaiting notification from the court registry about a return date for the application”. The email also stated that “[w]e have sought a return date on Friday 30 August 2019 and we will let you know when we hear”. At 2:51 pm on 19 August 2019 Mr See received an email from this Court’s registry stating that “[y]our lodgement has been marked Pending”, and that the reason for being so marked was “Pending – Listing Required”. The email continues:

   If the reason for making this lodgement as Pending is to schedule a listing, or to obtain additional information from within the Court, we will process the lodgement as soon as possible.

4. Mr See deposes that “at about that time” Mr See caused his paralegal to telephone the Sydney Registry of this Court. The paralegal reported that she had been informed that “the application needs to be sent to the Judge so a return date can be confirmed”.  On 28 August 2019 Mr See says he had a conversation with his client (Mr O’Shannassy) who said that he had looked “at the Court Portal and there is no listing of the Application”.

5. Mr See was not cross-examined. There is no reason, therefore, to doubt the truth of the matters to which he has deposed. That, however, does not extend to the truth of the hearsay evidence of what Mr O’Shannassy told Mr See, namely, that he had looked at the Court portal, but there was no listing of the application. That evidence must be assessed with at least two other items of evidence. The first is what is recorded in the application in a case. It records that the application had been set down for hearing on 30 August 2019. It is reasonable to infer, and I do infer, that the information that was recorded in the application would have been derived from computer records, and that those same computer records would have generated the information that is contained in the Court portal. The second item of evidence is that Mr Sarina and Mr Green, through their lawyers, became aware that the application in a case had been set down for hearing on 30 August 2019. That suggests that the information that was available to Mr Green and Mr Sarina through their lawyers about the hearing of the application in a case was also available to Mr See and to Mr O’Shannassy. That, in turn, casts doubt on Mr O’Shannassy’s statement to Mr See that the Court Portal did not record that the application in a case had been set down for hearing at 10.15 am on 30 August 2019.

6. It also appears that Mr See assumes that where, as occurred in this case, the Court Registry sends an email stating that a lodgement has been marked as “Pending – Listing Required”, the Court would notify the person who lodged the application of the date of hearing in some way other than by recording that date on its computer records which could be accessed by the person who lodged the application. If that is the assumption on which Mr See proceeded, there is no basis for it. In any event, even if the assumption were correct, given Mr O’Shannassy, through his lawyer, had requested that the application be made returnable on 30 August 2019, it is reasonable to expect that Mr See or some other person in his office would have made enquiries of the Court about the date on which the application in a case was listed. That does not appear to have occurred.

7. In any event, whether or not Mr See or Mr O’Shannassy acted reasonably or unreasonably in not being ready to proceed with the hearing of the application in a case on 30 August 2019, the position is that it was Mr O’Shannassy who set in train the events that led to the application in a case being set down for hearing at 10.15 am on 30 August 2019; to Mr Sarina and Mr Green, through their lawyer, being notified that the application in a case had been set down for hearing at that time and date; and to Mr Sarina and Mr Green incurring legal costs by instructing lawyers to prepare for, and appear at the hearing of the application in a case at the notified date and time. And it was due to Mr O’Shannassy’s not being ready to proceed with the hearing at 10.15 am on 30 August 2019 that resulted in Mr Sarina and Mr Green throwing away the costs they incurred in placing themselves in the position to defend the application in a case on 10.15 am on 30 August 2019. In those circumstances, Mr O’Shannassy should pay the costs of Mr Sarina and Mr Green thrown away because of the adjournment of the hearing of 30 August 2019.

Disposition

1. I propose to dismiss the application in a case filed by Mr O’Shannassy on 19 August 2019. There is no reason why costs should not follow the event, and I propose, therefore, to order that Mr O’Shannassy pay the costs of the application in a case. Such an order for costs will include the costs of Mr Sarina and Mr Green thrown away because of the adjournment of the hearing of 30 August 2019.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 October 2019