Oral hearing 28 November 2013. Written submissions 6 December 2013 (Appellant), 9 December 2013 (Second Respondent), 10 December 2013 (First Respondent).
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
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.
Reasons were published on 3 December 2013.
The parties have made written submissions as to costs.
Order for costs
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.
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
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…
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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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.