Yunghanns v Colquhoun-Denvers

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0015

PETER NICHOLAS YUNGHANNS	Applicant
v
NICHOLAS COLQUHOUN-DENVERS	Respondent

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JUDGES:	TATE, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 2020
DATE OF JUDGMENT:	10 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 15
JUDGMENT APPEALED FROM:	[2019] VSC 853 (T Forrest J)

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COSTS – Defamation proceeding – Claim and counterclaim dismissed – Application before primary judge by unsuccessful plaintiff for defendant to pay one-third of costs of claim – Plaintiff ordered to pay defendant’s costs of claim on standard basis – Defendant ordered to pay plaintiff’s incremental costs of counterclaim on standard basis – Whether judge erred in failing to give due consideration to defendant’s conduct in response to plaintiff’s attempts at settlement – Whether judge fettered his costs discretion by treating rule of taxation as a binding principle of law – Whether costs orders unreasonable and plainly unjust – Smith v Madden (1946) 73 CLR 129, Dimos v Willetts (2000) 2 VR 170, WorkCover Authority v Adventure Park Pty Ltd [2019] VSC 270, discussed – Defamation Act 2005 s 40 – Civil Procedure Act 2010 ss 9, 20, 22, 24 and 65C – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Collins QC with Mr I Percy	Strongman & Crouch
For the Respondent	Mr B Walker SC with Dr S Baron Levi	Batten Sacks

TATE JA
KYROU JA
NAILL JA:

TABLE OF CONTENTS

Introduction and summary.......................................................................................	1
The defamation proceedings......................................................................................	3
Commencement of proceedings......................................................................................	3
The mediation.................................................................................................................	8
The principal judgment..................................................................................................	11
The Defamation Act — costs...................................................................................	16
The costs judgment.....................................................................................................	17
Grounds of appeal........................................................................................................	25
Did the judge err in failing to consider various statutory prescriptions in the context of the response failures?...............................................................................	27
Did the judge adopt the mistaken approach?.........................................................	37
Are the costs orders unreasonable or plainly unjust?...........................................	49
Conclusion    ...............................................................................................................	52

Introduction and summary

1. Peter Yunghanns (‘PY’) and Nicholas Colquhoun-Denvers (‘NCD’) have both occupied senior positions in the Federation of International Polo (‘FIP’) over a long period of years.  PY unsuccessfully brought a defamation proceeding against NCD on the basis of statements NCD had made which imputed that PY was dishonest and irresponsible, had made false allegations and was guilty of sufficient misconduct to warrant him being declared persona non grata.  NCD was, however, unsuccessful in a counterclaim against PY in which he alleged that he had been defamed by statements made by PY that, amongst other things, carried the broad meaning that, as President of the FIP, he had engaged in gross financial mismanagement, approved reports he knew to be false, and engaged in duplicitous and misleading behaviour.  The primary judge dismissed the claim and the counterclaim and there is no appeal from the principal judgment.[1]  With respect to costs, the judge made orders that, on the claim, PY pay NCD’s costs on a standard basis,…