Trkulja v Yahoo! Inc LLC (No 3)

[2012] VSC 228

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 10916 of 2009

MILORAD TRKULJA (aka Michael Trkulja)

Plaintiff

v

YAHOO! INC LLC
and
YAHOO! 7 PTY LTD (ACN 089 187 100)

First Defendant

Second Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions dated 28 May 2012 and 29 May 2012
DATE OF JUDGMENT:	1 June 2012
CASE MAY BE CITED AS:	Trkulja v Yahoo! Inc LLC & Anor (No 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 228

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DEFAMATION – COSTS – Costs of unsuccessful application by plaintiff for indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Dibb	Efron & Associates
For the Defendants	Mr M. Wheelahan SC and Mr S O’Meara SC	Allens Arthur Robinson

HIS HONOUR:

1. In this matter, I delivered reasons for judgment on 25 May 2012,[1] in which I rejected the application by the plaintiff for indemnity costs.  In the last paragraph of the judgment, I set out the orders which I proposed to make, subject to hearing from counsel in relation to the precise terms in which the orders were to be expressed.  Counsel for the plaintiff has now made a submission, by way of written memorandum, in relation to the costs of the appearance of 23 May 2012, on which I heard oral submissions relating to the plaintiff’s application for indemnity costs.  In response, counsel for the defendants have filed a short memorandum, opposing the plaintiff’s submissions in relation to that aspect of the proposed orders. 

   [1]Trkulja v Yahoo! Inc LLC & Anor (No 2) [2012] VSC 217.

1. In my reasons for judgment, I proposed making an order (inter alia) that the plaintiff pay to the defendants the costs of and incidental to the application by the plaintiff for indemnity costs, including the costs of the written submissions, and the costs of the appearance of 23 May 2012.  That order reflected common ground between counsel on the previous hearing before me, namely, that the costs of the application, for indemnity costs, should “follow the event”.  However, Mr Dibb, who appears on behalf of the plaintiff, has contended that the costs of the hearing on 23 May 2012 were occasioned by the attempt by the defendants to adduce evidence as to what occurred at the mediation.  Mr Dibb has, correctly, pointed out that the defendants abandoned their application to adduce evidence of the proceedings at the mediation.  Further, at that hearing, the defendants, unsuccessfully, made an oral argument, that the plaintiff had failed to prove that the defendants had not made a settlement offer in respect of the proceeding.  In my reasons for judgment,[2] I rejected that argument on behalf of the defendants. 

   [2]Above, paragraph [22].

1. It is true, as the defendants’ counsel point out, that the position now taken by Mr Dibb, on behalf of the plaintiff, is different, in respect of the costs of the hearing on 23 May, to the position he took before me on that date.  However, in hindsight, it was, probably, premature for me to have asked counsel to take a position on the issue of the costs of the application before me.  Ultimately, although the defendants succeeded on that application, they did not succeed on the two matters, raised by them, and which necessitated oral argument before me on 23 May.  If those two matters had not been raised for argument, I would have been able to decide the issue, relating to indemnity costs, on the basis of the written submissions, which had been filed on behalf of the parties.  In particular, I departed from my previous intention to decide the case on the basis of written submissions, when the defendants, in their written submissions, took the position that I should admit evidence as to what had occurred at the mediation between the parties.

1. In those circumstances, in my view, it would be unjust for the defendants to be awarded the costs of the oral hearing before me on 23 May.  In all the circumstances, I have come to the conclusion that it is appropriate that each party bear their own costs of the hearing before me on that date.

1. Accordingly, I shall make the following orders in the proceeding:

1.There be judgment for the plaintiff against the first and second defendants for damages in the sum of $241,310.48 (such judgment sum including damages in the nature of interest in the sum of $16,310.48).

2.The defendants pay to the plaintiff the costs of and incidental to the proceeding, including any reserved costs, except for the costs of and incidental to the application by the plaintiff for indemnity costs. 

3.The plaintiff pay to the defendants the costs of and incidental to the application by the plaintiff for indemnity costs, including the costs of the written submissions, but not including the costs of and incidental to the appearance on 23 May 2012.

4.Each party bear their own costs of and incidental to the appearance on 23 May 2012.

5.The defendants be entitled to set off, against the costs payable by them to the plaintiff in accordance with paragraph [2] hereof, the costs which they are entitled in accordance with paragraph [3] hereof, together with the sum of $15,135.97 costs ordered to be paid by the plaintiff to the defendants by Associate Justice Wood on 2 April 2012.

6.That the orders made in paragraphs [1] to [5] be stayed for a period of 14 days from the date hereof.