Young v RSPCA NSW - [2019] NSWDC 613

District Court

New South Wales

Medium Neutral Citation: Young v RSPCA NSW [2019] NSWDC 613
Hearing dates: 24 October 2019; 25 October 2019 (written submissions)
Date of orders: 30 October 2019
Decision date: 30 October 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff pay the sixth and seventh defendants’ costs in the gross sum of $5,905.90, pursuant to s 98 Civil Procedure Act 2005 (NSW).
(2) The plaintiff’s application for payment of the costs to be deferred pending the completion of proposed litigation in the Federal Court of Australia is refused.

Catchwords: COSTS – plaintiff discontinues defamation action against two of seven defendants – application by those defendants for gross sum costs order – plaintiff seeks orders that the costs be assessed and that payment of the assessed costs await the determination of proposed Federal Court proceedings against one of the defendants concerning the same publication – total costs of $5,905.90 (GST included) sought – gross sum costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60 and 98
Defamation Act 2005 (NSW), s 23
Cases Cited: Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009
Dickens v State of New South Wales & Ors (No 2) [2018] NSWSC 14
Harrison v Schipp (2002) 54 NSWLR 738
Idoport Pty Ltd v National Australia Bank [2005] NSWSC 1273
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus [2007] NSWSC 23
In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
Otto v Gold Coast Publications Pty Ltd [2017] NSWDC 101
Starr-Diamond v Diamond (No 4) [2013] NSWSC 811
Texts Cited: Guideline For Costs Payable Between Parties Under Court Orders (Supreme Court of New South Wales)
Category: Procedural and other rulings
Parties: Plaintiff: Gary Young
First Defendant: RSPCA NSW
Second Defendant: Jean Sprague
Third Defendant: Andrew Wozniak-Smythe
Fourth Defendant: Australia Broadcasting Corporation
Fifth Defendant: Google
Sixth Defendant: Gavin Fernando
Seventh Defendant: News Limited
Representation:
Counsel:
Plaintiff: In person
Sixth and Seventh Defendants: Ms M Cowden
Solicitors:
Plaintiff: In person
Sixth and Seventh Defendants: News Limited

File Number(s): 2019/198201
Publication restriction: None

Judgment

The application before the court

This is an application for a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW), following the discontinuance of proceedings for defamation by the plaintiff against the sixth and seventh defendants in these proceedings.
The plaintiff filed a statement of claim in which he incorrectly sued the seventh defendant as the publisher of a website The publisher of the website at is News Life Media Pty Ltd. The terms and condition of the website which are available at include a table stating the names and publishers of News websites, the relevant jurisdiction governing each site, and a street address for the editor. The second site listed in the table is “news.com.au” and the publisher is stated to be “News Life Media Pty Ltd”.
A copy of the matter complained of, as attached to the statement of…

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.

Continue reading Young v RSPCA NSW

Details

AGLC: Young v RSPCA NSW [2019] NSWDC 613
Case: [2019] NSWDC 613
Decision Date: 30 October 2019

CaseChat Overview and Summary

In Young v RSPCA NSW, the plaintiff, Mr. Young, had commenced a defamation action against seven defendants, including the RSPCA NSW. After discontinuing the action against two of the defendants, those defendants applied for an order that Mr. Young pay their costs in a gross sum, as permitted by section 98 of the Civil Procedure Act 2005 (NSW). The legal issues before the court were whether Mr. Young's discontinuance of the action against two of the defendants entitled those defendants to seek gross sum costs and whether the court should defer the payment of those costs pending the outcome of proposed federal court proceedings against one of the defendants concerning the same publication.

The court found that Mr. Young's discontinuance of the action against two of the defendants did entitle those defendants to seek gross sum costs. The court noted that the discontinuance was not due to any fault on the part of the defendants and that the plaintiff had no reasonable prospects of succeeding in the action. The court also found that the plaintiff's application to defer payment of the costs pending the outcome of the proposed federal court proceedings was without merit. The court noted that the proposed federal court proceedings were unrelated to the costs sought by the defendants and that the plaintiff had not demonstrated any good reason for the deferral.

Accordingly, the court made orders that Mr. Young pay the sixth and seventh defendants' costs in a gross sum of $5,905.90, pursuant to section 98 of the Civil Procedure Act 2005 (NSW). The court also refused the plaintiff's application for payment of the costs to be deferred pending the completion of the proposed federal court proceedings.

Orders

Orders of the court

(1) The plaintiff pay the sixth and seventh defendants’ costs in the gross sum of $5,905.90, pursuant to s 98 Civil Procedure Act 2005 (NSW).

(2) The plaintiff’s application for payment of the costs to be deferred pending the completion of proposed litigation in the Federal Court of Australia is refused.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Young v RSPCA NSW [2019] NSWDC 613
Hearing dates:	24 October 2019; 25 October 2019 (written submissions)
Date of orders:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff pay the sixth and seventh defendants’ costs in the gross sum of $5,905.90, pursuant to s 98 Civil Procedure Act 2005 (NSW). (2) The plaintiff’s application for payment of the costs to be deferred pending the completion of proposed litigation in the Federal Court of Australia is refused.
Catchwords:	COSTS – plaintiff discontinues defamation action against two of seven defendants – application by those defendants for gross sum costs order – plaintiff seeks orders that the costs be assessed and that payment of the assessed costs await the determination of proposed Federal Court proceedings against one of the defendants concerning the same publication – total costs of $5,905.90 (GST included) sought – gross sum costs order made
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60 and 98 Defamation Act 2005 (NSW), s 23
Cases Cited:	Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 Dickens v State of New South Wales & Ors (No 2) [2018] NSWSC 14 Harrison v Schipp (2002) 54 NSWLR 738 Idoport Pty Ltd v National Australia Bank [2005] NSWSC 1273 Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus [2007] NSWSC 23 In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 Otto v Gold Coast Publications Pty Ltd [2017] NSWDC 101 Starr-Diamond v Diamond (No 4) [2013] NSWSC 811
Texts Cited:	Guideline For Costs Payable Between Parties Under Court Orders (Supreme Court of New South Wales)
Category:	Procedural and other rulings
Parties:	Plaintiff: Gary Young First Defendant: RSPCA NSW Second Defendant: Jean Sprague Third Defendant: Andrew Wozniak-Smythe Fourth Defendant: Australia Broadcasting Corporation Fifth Defendant: Google Sixth Defendant: Gavin Fernando Seventh Defendant: News Limited
Representation:	Counsel: Plaintiff: In person Sixth and Seventh Defendants: Ms M Cowden Solicitors: Plaintiff: In person Sixth and Seventh Defendants: News Limited
File Number(s):	2019/198201
Publication restriction:	None