McColl JA at [1]; Sackville AJA at [187]; Adamson J at [191]
Decision:
(1) Grant leave to appeal; (2) Appellant to file the notice of appeal in the form of the draft appearing in the White Book at page 235 within seven days; (3) Appeal allowed; (4) Set aside the orders made by Walmsley ADCJ on 20 March 2014; (5) Dismiss the respondent’s notice of motion filed on 25 September 2013 insofar as it sought orders against the appellant with costs; (6) Respondent to pay the appellant’s costs of the application for leave to appeal and of the appeal and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.
Catchwords:
Procedure – costs – s 98, Civil Procedure Act 2005 (NSW) – costs order against non-party – where plaintiff allegedly defamed in email sent from email address appearing to be defendant’s – where email in fact composed and sent by defendant’s husband –where plaintiff instructed solicitors to advise in relation to defamation proceedings – where plaintiff immediately saw email as work of defendant’s husband – where solicitors commenced defamation proceedings against defendant – where defendant denied publishing email – where plaintiff frequently sought advice from solicitors as to joining defendant’s husband – defendant’s husband not joined – where at trial defendant’s husband gave evidence he composed and sent email from email address appearing to be defendant’s – where trial judge found plaintiff failed to prove defendant published the email – where trial judge found defendant’s husband obvious alternative defendant – whether trial judge erred in exercising discretion to award non-party costs in ordering defendant’s husband to pay costs plaintiff was ordered to pay defendant and costs for which plaintiff liable to solicitors
Procedure – costs order against non-party – principles for exercising discretion to award costs against non-party – relevant circumstances
[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
Yu v Cao [2015] NSWCA 276
Case
[2015] NSWCA 276
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal from an order of Walmsley ADCJ in the Supreme Court of New South Wales. The appellant, Mr. Cao, sought leave to appeal against an order made by the primary judge that he pay the costs incurred by the respondent, Ms. Yu, in defamation proceedings, and also the costs for which Ms. Yu was liable to her own solicitors. Ms. Yu had commenced defamation proceedings against Mr. Cao, alleging that an email containing defamatory material had been sent from an email address appearing to be Mr. Cao's. However, at trial, it was established that the email was in fact composed and sent by Mr. Cao's husband, who was not joined as a party to the proceedings.
The central legal issue before the Court of Appeal was whether the primary judge erred in exercising her discretion to order Mr. Cao, a non-party to the original defamation proceedings, to pay Ms. Yu's costs. This involved considering the principles governing the award of costs against a non-party under section 98 of the *Civil Procedure Act 2005* (NSW), and whether the circumstances of the case justified such an order. The court had to determine if Mr. Cao's involvement in the litigation, or his husband's actions, warranted making him liable for Ms. Yu's costs.
The Court of Appeal found that the primary judge had erred in her exercise of discretion. The court reasoned that while Mr. Cao's husband was the author of the defamatory email and an obvious alternative defendant, there was no basis to hold Mr. Cao personally liable for the costs incurred by Ms. Yu. The evidence did not establish that Mr. Cao had published the email or that he was otherwise responsible for the litigation in a way that would justify a non-party costs order against him. The court noted that Ms. Yu had been advised from an early stage that the email was the work of Mr. Cao's husband, and yet chose not to join him as a party.
Consequently, the Court of Appeal allowed the appeal, set aside the orders made by the primary judge, and dismissed the respondent's notice of motion insofar as it sought orders against the appellant. The respondent was ordered to pay the appellant's costs of the application for leave to appeal and of the appeal.
Orders
Orders of the court
(1) Grant leave to appeal;
(2) Appellant to file the notice of appeal in the form of the draft appearing in the White Book at page 235 within seven days;
(3) Appeal allowed;
(4) Set aside the orders made by Walmsley ADCJ on 20 March 2014;
(5) Dismiss the respondent’s notice of motion filed on 25 September 2013 insofar as it sought orders against the appellant with costs;
(6) Respondent to pay the appellant’s costs of the application for leave to appeal and of the appeal and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.