Setka v Abbott (No 2)

Case [2013] VSCA 376


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0231

JOHN SETKA Appellant
v
THE HONOURABLE TONY ABBOTT MP First Respondent

AUSTRALIAN NEWS CHANNEL PTY LTD
(ACN 068 954 478)

(NO 2)

Second Respondent

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JUDGES

WARREN CJ, ASHLEY and WHELAN JJA

WHERE HELD

Melbourne

DATE OF HEARING

Oral hearing 28 November 2013.  Written submissions 6 December 2013 (Appellant), 9 December 2013 (Second Respondent), 10 December 2013 (First Respondent).

DATE OF JUDGMENT

17 December 2013

MEDIUM NEUTRAL CITATION

[2013] VSCA 376

JUDGMENT APPEALED FROM

Setka v Abbott [2012] VSC 534 (Beach J)

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Costs – Application for leave to appeal from interlocutory orders – Defamation – Application to strike out defences – Grounds of appeal (with one exception) not argued before trial judge – Application dismissed without determining merits of new grounds – Whether costs should follow event – Whether order should be made that costs be taxable forthwith.

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APPEARANCES:

Counsel Solicitors
For the Appellant G O’L Reynolds SC
and Ms R L Enbom
Slater & Gordon Lawyers

For the First Respondent

For the Second Respondent

M F Wheelahan SC
and T J F McEvoy

S O’Meara SC
and A Strahan

Arnold Bloch Leibler

Johnson Winter Slattery

WARREN CJ

ASHLEY JA
WHELAN JA:

History

  1. On 28 November 2013, the Court dismissed an application by summons by which the plaintiff, John Setka, sought leave to appeal against orders made by Beach J (as his Honour then was) on 12 November 2012.  We reserved the costs of the application pending publication of written reasons and the making of written submissions by the parties.

  1. Reasons were published on 3 December 2013.

  1. The parties have made written submissions as to costs.

Order for costs

  1. For the reasons which follow, we will order, contrary to the submissions for the plaintiff, that the plaintiff pay the costs of his unsuccessful application.  We will not order, contrary to the submissions for the defendants, that the costs may be taxed immediately.  So the default position established by rule 63.20(1) of Chapter 1 will apply.

  1. The dismissal of the plaintiff’s application means that the costs order made by the judge on 12 November 2012 remains undisturbed.  It was an order that costs be reserved.[1]  There is no occasion for us to address that order. 

    [1]If the order remains in that form, see rule 63.22 of Chapter 1.

Costs should follow the event

  1. The defendants submitted that costs (that is, of the application) should follow the event.  The plaintiff submitted, however, that the Court should direct that costs abide the costs determination of Beach JA in respect of an application scheduled for hearing before his Honour on 9 December 2013.[2]  By that application the plaintiff seeks to agitate, it appears, all of the matters raised by the amended notice of appeal referable to the application which we dismissed, and another matter besides.[3]

    [2]It is a matter of record that such a hearing was held, and that the judge has reserved his decision.

    [3]We say ‘appears’, because a summons…

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AGLC
Setka v Abbott (No 2) [2013] VSCA 376
Case
[2013] VSCA 376
Decision Date

CaseChat Overview and Summary

The case of Setka v Abbott (No 2) involved a defamation dispute that was brought before the court. The plaintiff, Mr Setka, sought to appeal interlocutory orders, and in particular, an application to strike out defences that had been denied by the trial judge. The defendant, Mr Abbott, opposed the application and argued that the grounds of appeal had not been properly argued before the trial judge, with the exception of one ground. The court was tasked with determining whether the application should be dismissed without determining the merits of the new grounds, and if so, whether costs should follow the event and if an order should be made that costs be taxable forthwith.

The primary legal issue before the court was whether the application for leave to appeal should be dismissed without determining the merits of the new grounds. The court had to consider the procedural fairness of allowing the plaintiff to argue new grounds of appeal that had not been presented to the trial judge. Additionally, the court had to consider whether the application should proceed to a determination of its merits, or if the failure to argue certain grounds before the trial judge warranted dismissal of the application. The court also needed to consider whether the costs of the application should follow the event, and if an order should be made that costs be taxable forthwith.

In dismissing the application, the court found that the grounds of appeal (with one exception) had not been argued before the trial judge. The court held that it was not procedurally fair to allow the plaintiff to argue new grounds of appeal that had not been presented to the trial judge. The court further held that the application should be dismissed without determining the merits of the new grounds, as the failure to argue certain grounds before the trial judge warranted dismissal of the application. The court also found that costs should follow the event, and ordered that costs be taxable forthwith.

The court's decision in Setka v Abbott (No 2) highlights the importance of procedural fairness in legal proceedings, and the need for parties to properly argue their grounds of appeal before the trial judge. The court's order that costs be taxable forthwith also serves as a reminder to parties of the potential financial consequences of unsuccessful legal applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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