Yunghanns v Colquhoun-Denvers (Costs) - [2019] VSC 853

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2016 01170

PETER NICHOLAS YUNGHANNS	Plaintiff
v
NICHOLAS COLQUHOUN-DENVERS	Defendant

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JUDGE:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	20 December 2019
CASE MAY BE CITED AS:	Yunghanns v Colquhoun-Denvers (Costs)
MEDIUM NEUTRAL CITATION:	[2019] VSC 853

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PRACTICE AND PROCEDURE – Costs – Claim – Plaintiff unsuccessful – Costs of claim – Counterclaim – Defendant unsuccessful – Costs of counterclaim – Apportionment of costs –Plaintiff pays defendant’s costs of claim on standard basis – Defendant pays plaintiff’s incremental costs of counterclaim on standard basis – Each party bears own costs of costs application – Defamation Act 2005 s 40(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Houghton QC with Mr B Holmes	Strongman & Crouch
For the Defendant	Mr B McClintock SC with Dr S Baron Levi and Ms J Alderson	Batten Sacks

_________________________________________________________________________________

HIS HONOUR:

Introduction

This Court delivered judgment in this matter on 28 June 2019, dismissing the plaintiff’s claim and the defendant’s counterclaim.[1] I directed the parties to file and serve written submissions on costs.
[1]Yunghanns v Colquhoun-Denvers [2019] VSC 433 (‘Reasons’).

The plaintiff’s claim in this matter centred around two emails which were sent by the defendant on 3 November 2015 and 30 December 2015. The plaintiff claimed that the defendant made statements in these emails which were defamatory of him. The defendant admitted that these statements were defamatory and raised the defences of justification,[2] truth and qualified privilege.[3]
[2]Under Defamation Act 2005 (Vic) s 25 (‘Defamation Act’).
[3]Ibid s 30.

The defendant alleged in his counterclaim that he was defamed by the plaintiff in three emails published on 6 November 2015, 22 December 2015 and 30 May 2016. The plaintiff denied that any of the impugned statements carry defamatory imputations and raised the defences of justification,[4] truth and qualified privilege.[5]
[4]Ibid s 25.
[5]Ibid s 30.

Neither the claim nor counterclaim was made out. The circumstances that attached to both the claim and counterclaim are set out at length in the substantive judgment.

Submissions on costs

Plaintiff’s submissions

The plaintiff asserted that he incurred $1.4 million in legal costs,[6] and despite failing in his claim, sought an order that the defendant pay one-third of the costs of the proceeding on a standard basis.[7]
[6]Plaintiff’s Submissions on Costs [2].
[7]Ibid [7], [26].

The plaintiff submitted that the legal costs incurred by him were avoidable, had the defendant responded to the plaintiff’s invitations to negotiate a settlement on three separate occasions.[8] It was submitted that the defendant failed to make any offer or proposal to settle throughout the course of the proceedings,[9] and thus failed to make reasonable attempts to resolve the dispute as he is required to do under s 40 of the Defamation Act 2005 (Vic) (‘Defamation Act’) and s 22 of the Civil Procedure Act 2012 (Vic)…

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

Case: [2019] VSC 853
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Yunghanns v Colquhoun-Denvers involved a dispute over costs following a defamation claim and counterclaim. The parties were represented in the Federal Court of Australia, with the case being heard by Justice Edelman. The plaintiff, Yunghanns, initially brought a defamation claim against the defendant, Colquhoun-Denvers, which was ultimately unsuccessful. In response, the defendant filed a counterclaim for defamation, which also failed. Both parties subsequently applied for costs in relation to the claims and counterclaims, leading to a detailed examination of the applicable legal principles regarding costs apportionment.

The primary legal issues before the court involved the proper apportionment of costs between the parties. Both parties contested the fairness and reasonableness of the costs orders proposed by the other, seeking to limit their liability while maximising their recovery. The court was required to determine the appropriate costs orders in light of the unsuccessful claims and counterclaims, considering the statutory framework provided by the Defamation Act 2005, particularly section 40(1), which mandates that the court may order one party to pay the costs of another if it is just to do so.

In delivering the judgment, Justice Edelman meticulously assessed the nature and extent of the unsuccessful claims and counterclaims, evaluating the proportionality and fairness of the costs incurred. The court ruled that the plaintiff should bear the defendant's costs of the initial defamation claim on a standard basis, while the defendant should bear the plaintiff's incremental costs of the counterclaim, also on a standard basis. Furthermore, the court determined that each party should bear their own costs related to the costs application itself, reflecting the unsuccessful outcomes of both claims. The final orders reflected a balanced approach, ensuring that neither party was unjustly burdened with the other's legal expenses.

Orders