(1) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendant’s costs of these proceedings in the form of a gross sum costs order in the sum of $13,917.75.
(2) Enforcement of order (1) stayed for 28 days from the date of this judgment.
(3) Time for any application under UCPR r 36.16 extended to 28 days from the date of this judgment.
Catchwords:
COSTS – proceedings struck out summarily – application for gross sum costs order and for a partial indemnity costs order – no issue of principle
Richard Farrell Woolf (plaintiff) Nicholas Brandt (defendant)
Representation:
Counsel: Mr T Smartt (defendant)
Solicitors: Youth Law Australia (defendant)
File Number(s):
2022/00135926
Publication restriction:
Nil
Judgment
The plaintiff’s claims for defamation
These are proceedings for defamation, commenced on 11 May 2022, for two publications on the defendant’s Facebook page dated 11 May (“the first publication”) and 28 August 2021 (“the second publication”).
The defendant brought an application for summary dismissal of both claims in 2022, details of which are set out in Woolf v Brandt [2022] NSWDC 623. The challenge to the first publication, based on failure to provide proper particulars of identification and downloading, failed because the plaintiff had, by the time the application was heard, provided those particulars. The second publication was struck conformably with s 12B of the Defamation Act 2005 (NSW) (“the Act”), as I refused the plaintiff’s application for leave to commence proceedings under s 12B(3)(b).
In that judgment, I made the following observations about costs:
“[70] I have required the plaintiff to provide full particulars of downloading for the first matter complained of and struck out the second matter complained of. In those circumstances, the plaintiff should pay the defendant’s costs, although I have granted liberty to apply…
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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Details
AGLC
Woolf v Brandt (No 3) [2023] NSWDC 215
Case
[2023] NSWDC 215
Decision Date
CaseChat Overview and Summary
In Woolf v Brandt, the plaintiff, Mr Woolf, sought to recover costs in relation to proceedings that were struck out summarily. The defendant, Ms Brandt, opposed the application for costs, arguing that the plaintiff was not entitled to the relief sought. The court was required to determine whether the plaintiff could recover the costs of the proceedings and, if so, in what form. The plaintiff sought a gross sum costs order and a partial indemnity costs order. The defendant argued that the plaintiff was not entitled to an indemnity costs order as there was no issue of principle involved in the proceedings. The court considered the relevant statutory provisions and case law to determine whether the plaintiff was entitled to the relief sought. The court found that the plaintiff was entitled to recover the costs of the proceedings, but only in the form of a gross sum costs order. The court held that there was no issue of principle involved in the proceedings, and therefore, the plaintiff was not entitled to an indemnity costs order. The court ordered that the plaintiff pay the defendant's costs of the proceedings in the form of a gross sum costs order in the sum of $13,917.75. The enforcement of the order was stayed for 28 days from the date of the judgment, and the time for any application under UCPR r 36.16 was extended to 28 days from the date of the judgment.
Orders
Orders of the court
(1) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendant’s costs of these proceedings in the form of a gross sum costs order in the sum of $13,917.75.
(2) Enforcement of order (1) stayed for 28 days from the date of this judgment.
(3) Time for any application under UCPR r 36.16 extended to 28 days from the date of this judgment.