Setka v Abbott (No 2)
[2013] VSCA 376
•17 December 2013
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 (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 S O’Meara SC | 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 dated 3 December 2013, which did raise these issues, was supplanted by an amended summons dated 9 December 2013 by which relief was sought but no particulars of the basis or bases upon which relief was sought were provided. We have not had recourse to a transcript of the hearing on 9 December.
The plaintiff’s submissions specify 11 reasons in support of the order which he seeks. A number of them recapitulate, or are variations of, submissions made to the Court on 28 November 2013 as to why we should then have dealt with all the issues raised by the plaintiff’s amended notice of appeal filed 20 March 2013. We rejected those submissions, and explained why we did so, in our earlier reasons. They do not advantage the plaintiff’s costs’ argument.
The further matters raised include submissions that - (1) The substance of four of the five grounds raised by the notice of appeal filed 20 March 2013 has yet to be determined; and might ultimately be resolved in the plaintiff’s favour. (2) The plaintiff would have been happy to conduct a further hearing before the primary judge if the defendants had suggested it. (3) A number of decisions support the view that a further hearing before the judge was likely to have been held to be an abuse of process or the subject of an issue estoppel. (4) The defendants cited no authority demonstrating that a ‘remitter’ to the court of first instance was likely or ever an appropriate course. (5) The reasons of this Court cite no precedent for a ‘remitter approach’, so the plaintiff was not on notice that a remitter was likely. (6) The plaintiff’s case on ground 2 of the 20 March 2013 notice of appeal was so strong that no argument could possibly be raised against it. The plaintiff should have the opportunity of raising the matter on 9 December 2013, and having the judge take it into account on costs. (7) There would be little additional cost in Beach JA dealing with the issues raised by the 20 March 2013 notice of appeal on 9 December 2013. (8) The amounts awarded for defamation are ‘notoriously low’. An adverse costs order ‘might well effectively wipe out the whole of a damages award’. It would be unjust to make such an order where the plaintiff might well succeed on the new arguments once agitated.
None of the recapitulated matters, or the new matters raised, has persuaded us that we should depart from the ordinary rule that costs follow the event. That is so despite the interlocutory nature of the order which the plaintiff sought to challenge. It is only necessary to say something about the new matters raised.
First, the plaintiff’s belated attempt to raise new issues for consideration by this Court, and, with one exception, his effective abandonment of grounds of appeal which related to matters argued on 9 December 2012, exposed the plaintiff to an order dismissing the application, which ordinarily attracts adverse costs consequences.
Second, months before the hearing on 28 November 2013, the plaintiff was put on notice that the defendants were objecting to the new arguments being advanced in this Court. That objection was not frivolous. Had the plaintiff wished to protect his position, he could have brought a fresh application before a judge and sought to pursue the new arguments. If, as he now submits, that application was likely to have been held to be an abuse of process, or the subject of an issue estoppel, then the plaintiff could at least have come to this Court saying that here alone could the issues be agitated before trial.
Third, and related to what we have just said, it was not the defendants’ obligation to suggest that the plaintiff bring an application which raised the new arguments before a single judge, or to cite authority that a ‘remitter’ was a likely or appropriate course to be taken by this Court. The defendants’ simple position was that this Court should not deal with the arguments newly raised. It was the professional responsibility of the plaintiff’s advisors to decide upon the course that should then be taken.
Fourth, again it is a related matter, this Court did not remit the new issues for hearing by a single judge. It dismissed the plaintiff’s application for leave to appeal. In the course of doing so, it noted, as was the fact, that the plaintiff had taken no step to raise the new issues with a single judge after the defendants objected to this Court dealing with them. It noted, as was the fact, that plaintiff’s counsel had cited no authority to support his submission that it would have been impossible to have brought the new issues before a single judge. And it noted, as could reasonably have been assumed, that had the plaintiff sought to raise the new issues before a single judge, time would not have stood in the way of a ruling having been made which could have been tested in this Court at the same time as Ground 2 of the 20 March notice of appeal.
Fifth, on 28 November one of the reasons which plaintiff’s senior counsel advanced why this Court should hear the new arguments was that there are authorities which hold that it would not be appropriate, indeed it would be impossible, to raise the new arguments before a single judge. With respect to costs, the matter is put somewhat differently - that is, that a number of authorities support the view that a further application to a single judge was ‘likely to have been held to be an abuse of process or the subject of an issue estoppel’. It is perhaps implied that the plaintiff’s failure to raise the new arguments before a single judge was motivated by his advisors’ understanding that such a course was likely to have been futile. If that implication is intended, it sits ill with the general thrust of counsel’s submissions on 28 November.
That aside, plaintiff’s counsel cites 10 authorities in support of the pertinent aspect of the costs submission. In our opinion, however, they offer no convincing support for the proposition advanced. This is not to say that there are not circumstances in which a failed interlocutory application may not be renewed. That there can be such circumstances is not in doubt. But the relevant question is whether, in the circumstances of this matter, it was at least likely that a single judge would have refused to entertain the new arguments. An affirmative answer to that question is not suggested by the authorities cited.
A number of the authorities[4] raised the question, in different contexts, whether a party should be able to revisit an interlocutory decision which depended upon evidentiary findings in reliance upon evidence not adduced on the first occasion. The outcome in those cases was variable. The resolution of such a question is remote from the pleadings issues raised by the plaintiff’s new arguments.
[4]D.A. Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139; Fletcher v Besser [2010] NSWCA 30; Chanel Ltd v FW Woolworths & Co Ltd [1981] 1 WLR 485; Woodhouse v Consignia Plc [2002] 1 WLR 2558; Electra Private Equity Partners & ors v KPMG Peat Marwick & ors [2001] 1 BCLC 589 (Court of Appeal, England and Wales).
Another authority[5] referred in passing to the impact upon a trial judge of determination on a prior occasion of a preliminary question. Again, such circumstances differ greatly from those which arose in this case.
[5]Bass v Permanent Trustee Co Ltd & Ors (1999) 198 CLR 334.
Three authorities involved pleading issues. In two of them,[6] a party appears to have unsuccessfully attempted a re-run of arguments previously put and rejected. Refusal to permit such a thing — which is not this case - was altogether unsurprising.
[6]Pioneer Concrete (WA) Pty Ltd v Elwood [2005] WASCA 48 and Continental Conveyer &Equipment Pty Ltd v Williams [2001] NSWSC 402.
In the third pleadings case,[7] on application by a defendant for leave to appeal an order concerning inspection of documents in a defamation proceeding, the plaintiff sought at the leave hearing to support the orders made below on additional grounds. Leave being granted, the plaintiff was directed by the Court of Appeal to file a notice of contention in accordance with rules of court. That was not done. When the appeal came on, plaintiff’s senior counsel[8] submitted that his client could choose not to file a notice of contention, and preserve the new arguments for hearing by a single judge on another day; or else that the Court should remit those arguments for such consideration. The Court of Appeal did not accept that position. After the Court had decided the appeal adversely to the plaintiff, the new arguments were raised and agitated before a single judge. Although the judge permitted this to be done, the arguments did not succeed. On appeal by the plaintiff, the Court of Appeal unsurprisingly said that the single judge should not have entertained the new arguments.
[7]Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313.
[8]Who, coincidentally, was senior counsel for the plaintiff in this Court.
The circumstances of that unusual case — in one way the very obverse of the situation here — bear no comparison with the circumstances of this matter.
Sixth, if some or all of the plaintiff’s new arguments find favour with Beach JA, then orders reflecting that fact will be made; and it may well be that costs will follow the event.[9] But that is no reason why the costs of the failed application in this Court should not be paid by the plaintiff. The same observation applies with respect to what is said to be the plaintiff’s unanswerable submission as to the differences in substance between the plaintiff’s and defendants’ pleaded imputations. If that submission does find favour, it will be on some occasion other than the hearing on 28 November 2013.
[9]Though see rules 63.20 and 63.22 of Chapter 1.
Seventh, if preparation and presentation of the matter for argument on 9 December 2013 involved little that had not been done by 28 November 2013, then if the plaintiff succeeds before Beach JA, any taxation of a costs’ order which might be made in his favour would presumably reflect that circumstance. But that does not operate to deny the defendants a costs order in their favour in respect of work done on the failed application.
Eighth, the submission founded upon the assertion that damages awards in defamation matters are ‘notoriously low’, even if it was accurate,[10] provides no reason why costs should not follow the event. In any event, if the plaintiff’s new arguments were ultimately upheld, a costs order in the plaintiff’s favour would likely have an off-setting impact against the order which this Court will now make.
[10]Cf the Victorian verdicts in Clarke v ABC and Anor (May 2001) and Hore-Lacy v Cleary and Anor (March 2010).
The default position established by rule 63.20(1) of Chapter 1 should apply
It was submitted for the defendants that the Court should order that the default position as to taxation of costs on an interlocutory application established by rule 63.20(1) not apply.
In support of that submission the first defendant argued that the application to this Court was discrete, and had failed; and that the plaintiff had been the moving party.
The second defendant relied upon four circumstances, of which we need only mention three. Thus — (1) the plaintiff’s application to this Court was misconceived, at least from the time when the grounds of appeal underwent major surgery; (2) an immediate taxation of costs would not involve duplication of work for the Costs Court; and (3) the plaintiff’s conduct of the application before this Court has caused significant delay; and so the second defendant will be out of pocket for longer than it ought to be. In support of its argument that any one of those matters was enough to obtain an order for immediate taxation of costs, counsel for the second defendant referred to Dale v Clayton Utz (No 3).[11]
[11][2013] VSC 593.
The discretion to order that the default position not apply is confined only by the principle that the discretion must be exercised judicially. But it has been held, depending upon the circumstances of the particular matter, that the default position may be upset where — (1) there is prospect of considerable delay in completion of the proceeding; (2) the issue the subject of the interlocutory order was discrete from what will finally require determinations; (3) the party against whom the substantive order was made was guilty of unsatisfactory conduct — described variously as ‘unreasonable’ or ‘reprehensible’, or as involving a want of ‘competence and diligence’.[12]
[12]Dale v Clayton Utz (No 3) [2013] VSC 593, [58]–[71], [80]–[82].
In our opinion, in the circumstances of this matter, none of the matters which we have identified is present; and we perceive no other reason why the default position should not prevail.
First, the plaintiff’s change of position has brought about delay. In our view, the new arguments could have been first ventilated months ago. But the delay has not been very great, and trial – once the pleadings issues have been exhausted - will not have been much delayed.
Second, the decision of this Court not to hear the plaintiff’s new arguments — and the flow-on effect of this upon ground 2 of the 20 March notice of appeal — was in one sense discrete. The application for leave to appeal was dismissed. But the subject-matter of the 20 March notice of appeal is very much alive; and, as we have already noted, the work done in preparing for the 28 November hearing will not have been wasted. It would advance form over substance to hold that the order which the Court made on 28 November was relevantly discrete.
Third, it cannot be said, at this stage, that all of the plaintiff’s new arguments lack foundation. Several of them, at first impression, are likely to require close consideration. The real vice is the way in which the plaintiff’s advisors sought to raise the new arguments; and then, the defendants having objected to this Court’s consideration of those arguments, simply waited until the hearing and then made many unconvincing submissions as to why this Court should deal with all the arguments raised. But dissatisfaction with that course of conduct is sufficiently addressed by dismissal of the application with an order for costs.
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