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- Unreported Judgment
Jannard v Dalituicama QDC 278
DISTRICT COURT OF QUEENSLAND
Jannard v Dalituicama  QDC 278
4974 of 2015
16 November 2021
Brisbane District Court
22 September 2020
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF OR WITHDRAWAL FROM PROCEEDING – where plaintiff seeking leave to wholly discontinue defamation proceedings – where discontinuance not opposed by both parties – where issue as to costs of the proceedings – whether circumstances justify an order in favour of plaintiff or defendant or neither
Uniform Civil Procedure Rules 1999 (Qld), r 304, r 307, r 681
Bucknell v Robins  QCA 474, cited
Commonwealth Bank of Australia v Daleport Pty Ltd (in rec) (No 6)  NSWSC 958, cited
Fairfield Services Pty Ltd (In liquidation) & Anor v Leggett & Anor  QSC 183, cited
One.Tel v Deputy Commissioner of Taxation (2000) 101 FCR 548;  FCA 270, cited
Oshlack v Richmond River Council  HCA 11; (1998) 193 CLR 72, cited
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622;  HCA 6, cited
Re: Queensland Nickel Pty Ltd (In Liquidation)  QSC 88, cited
Santer & Anor v Luddy  QCA 217, cited
True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995  NSWLEC 221, cited
Zhao v Suzhou Haishun Investment Management Co Ltd  VSCA 34, cited
G C Curtis for the plaintiff
A Morris QC for the defendant
HWL Ebsworth for the plaintiff
Corney & Lind Lawyers for the defendant
- This is an application brought by the plaintiff seeking leave to wholly discontinue the proceedings against the defendant and for an order that the defendant pay the plaintiff’s costs of the proceedings, or in the alternative, that there be no order as to costs of the proceedings.
Events in 2016
- The claim filed 18 December 2015 sought orders restraining the defendant from publishing matter defamatory of the plaintiff and matters similar or identical to those matters, damages and costs.
- The alleged defamatory matter was contained in a blog and petition site published by the defendant on 16 June 2015. The effect of the blog was alleged to be that the plaintiff had unlawfully taken Vatuvara and Kaibu Islands (the Islands) from the Yacata People for his own commercial gain, used images of the Islands without permission, developed the Islands without concern for the local environment and exploited the Yacata People and marine resources for his own commercial gain. The statement at the petition site was to the effect that the plaintiff, billionaire sunglasses Oakley founder, was exploiting the people of Yacata and their marine resources. The plaintiff claimed an amount of $250,000 by way of general and aggravated damages.
- On 10 January 2016 the defendant personally sent an email to the plaintiff asking, in the spirit of resolving the long-standing dispute concerning the Islands, that the plaintiff, without prejudice, withdraw the action and stating that he agreed to remove the blogsite once and for all.
- On 21 January 2016, the lawyer for the plaintiff sent to the defendant a draft deed of settlement setting out the terms upon which the plaintiff was willing to resolve the proceedings. The deed contained a clause whereby the defendant made admissions that he had made defamatory comments and acknowledged that he had damaged the plaintiff’s reputation. By the deed the defendant was to take down and refrain from ever reinstating the blog and the online petition, and “permanently extricate himself from all discussions” between the plaintiff and those acting on his behalf and/or the people of Yacata, regarding the development of the resort. The deed required the defendant to pay the plaintiff’s legal costs fixed in an amount of $10,000 within seven days. The plaintiff agreed to discontinue the proceedings within three days of the defendant complying with all of those requirements.
- The defendant evidently did not agree to the terms of the deed and a defence was filed on 22 February 2016.
- By its defence the defendant admitted publishing the blog and at the petition site. The defendant denied that the words conveyed the imputations pleaded and further denied that the plaintiff was exposed to ridicule and contempt or had his reputation injured or suffered hurt and embarrassment.
- The defendant alleged that the true purpose and object of the claim was to place financial and commercial pressure on the defendant, to induce the defendant to agree to permanently extricate himself from all discussions between the plaintiff and the people of Yacata regarding the development, and to provide written confirmation of that. On that basis, it was said the claim had been commenced in bad faith, for collateral and ulterior purposes, and that the proceedings was therefore an abuse of the court’s process.
- It was further alleged that the words sued upon were substantially true, contextually true, or constituted an expression of opinion of the defendant relating to matters of public interest and based upon proper material.
- On 29 February 2016, the plaintiff’s solicitors sent an email to the defendant’s solicitors requesting a without prejudice meeting. In the email reference was made to the assistance that the plaintiff was providing to the Yacata People following Tropical Cyclone Winston. The email stated that the defendant’s conduct in defending the proceedings had caused the plaintiff to reflect on that assistance. The email stated that there was a risk that the matters contended in the defence “could jeopardise [the plaintiff’s] personal motivation to continue to provide relief assistance in circumstances where he continues to be undermined by the very nature of the matters raised in [the defendant’s] defence.” It was said that it was sensible and in the best interests of the people of Yacata, for the respective clients to explore options to resolve the matter.
- The solicitors for the defendant sent a detailed email in response to the email the same day which included reference to the defendant’s intention to file an amended defence and attached a copy of the proposed defence. The email referred to the plaintiff being able to file a Notice of Discontinuance at any time subject, it was said, to an entitlement of the defendant to his costs.
- The defendant says that in early 2016 as a result of threats by the plaintiff to withdraw assistance to members of the defendant’s village who were affected by cyclone Winston that he made the blog unavailable for public viewing.
- An amended defence was filed on 4 March 2016. The defence alleged that the sending of the email of 29 February 2016:
“was calculated and intended by the Plaintiff to coerce the Defendant into:
- (i)abandoning recourse to this Honourable Court for the proper, lawful and just determination of the issues pleaded in this proceeding; and
- (ii)capitulating to the Plaintiff’s demands for the settlement of this proceeding on terms dictated by the Plaintiff”.
- It was further alleged that the taking of such steps was in furtherance of the plaintiff’s abuse of the Court’s process and disentitled the plaintiff to any relief in the proceedings.
- By email sent 7 March 2016, the solicitors for the plaintiff made an offer to settle the proceedings on the basis that the defendant give an undertaking, enforceable by action in contempt, not to publish matter of and concerning, and defamatory of, the plaintiff to the effect that the plaintiff has unlawfully taken the Islands from the Yacata people, used images of the Islands without permission, developed the Islands without concern for the local environment and exploited the Yacata people and marine resources, all for his own commercial gain, and that the defendant pay the plaintiff’s costs.
- The solicitors for the defendant responded by email on 23 March 2016, rejecting the offer and making an offer for the proceedings to be dismissed and for the plaintiff to pay the defendant’s costs.
- On 11 July 2016, the plaintiff filed an application seeking to strike out certain paragraphs of the amended defence filed 4 March 2016. The main paragraphs the subject of the application were those that pleaded the defences of truth, contextual truth and honest opinion. It was submitted that the paragraph relying upon truth was objectionable because it alleged that the words sued upon were substantially true, whereas the relevant question is whether the defamatory imputations were true. It was submitted in effect that further material facts were required to substantiate the defences of contextual truth and honest opinion.
- The matter was heard on 21 July 2016 and judgment was given on 31 August 2016, with orders being made striking out two paragraphs of the defence and giving the defendant liberty to file an amended defence within 28 days. In giving judgment, Andrews SC DCJ commented that “the plaintiff expected that if paragraphs 30 and 31 are struck out and pleaded differently, the relevance of the other eighteen contentious paragraphs may appear and remove his cause of complaint.” Andrews SC DCJ concluded that “because of that possibility, it is unnecessary to consider whether the other contentious paragraphs should be struck out.”
- In making submissions before me, the parties proceeded on the basis that, in giving judgment, no order had been made in relation to the costs of the application. The plaintiff sought for an order as to costs to be made in his favour now. A review of the Order Sheet on the Court file, however, records that upon the publication of the reasons for judgment on 31 August 2016, orders were made as per the judgment and an order was made for the applicant’s costs to be the applicant’s costs in the proceedings. The existence of that order was not known by the parties or me at the time of the oral hearing.
- In accordance with the judgment, the defendant filed a further amended defence on 28 September 2016. In the further amended defence, it was alleged that the innuendo of the words published by the defendant were substantially true, or if the innuendo was not substantially true, then they were published in the context of the balance of the words sued upon and did no further harm to the reputation of the plaintiff. Alternatively, it was said the words alleged to give rise to an innuendo constituted an expression of honest opinion of the defendant, was opinion based on proper material and the opinion related to matters of public interest.
- The defendant also pleaded additional background facts, including allegations that the Islands were unlawfully taken from the Yacata People (the land theft) and Vatuvara Ltd as the owner of the legal title in the Islands was the beneficiary of the land theft and the known recipient of stolen property and, as the controlling mind of Vatuvara Ltd, the plaintiff was complicit in its becoming and remaining a recipient of the land theft. It was further said the company had used images without permission and were developing without concern for the local environment and that, as the controlling mind, the plaintiff was complicit for the financial gain of the company and, through the company, of himself.
- The plaintiff did not file a reply to the amended defence or further amended defence.
- By letter dated 9 November 2016 the defendant served its list of documents.
Events in 2017
- Mr Clarke, the solicitor for the plaintiff, says that he sought instructions on 9 June 2017 in relation to the filing of a reply to the defendant’s defence. Mr Clarke deposes to his instructions being at the time:
“to let the matter rest for about 4 months because the Defendant had taken down the Blog, was no longer contacting and harassing the Plaintiff and had ceased trying to create discord between neighbouring Fijian landowners from the island of Yacata and the Plaintiff.”
- Mr Clarke deposes to having obtained instructions from the plaintiff on 16 November 2017 to leave it for a further few months “because the situation had not changed since June 2017.”
Events in 2018 and after
- Mr Clarke deposes to having sought further instructions on 3 December 2018 and on 12 August 2020 and to having obtained instructions on 18 August 2020 from the plaintiff to seek leave to discontinue the proceedings. Mr Clarke deposes to having been instructed by the plaintiff that:
“he is satisfied that he has succeeded in achieving his primary objective in initiating this proceeding which is to compel the Defendant to take down the defamatory allegations made against him in the Blog and not to disturb him any further.”
- Mr Clarke deposed to having been informed by the plaintiff, and those working for the plaintiff, that the defendant had not reinstated the blog or made further false allegations against the plaintiff since this proceeding was commenced and that he feels sufficiently vindicated as a result of this. It was said that the passage of time “has caused the Plaintiff to move on and put this matter behind him.”
- On 7 August 2020, some three and half years later, the solicitors for the defendant contacted the solicitors for the plaintiff giving notice of intention to make an application for the proceedings to be dismissed for want of prosecution and for the payment by the plaintiff of the defendant’s costs on an indemnity basis. The email attached a draft application and supporting affidavit and was said to be “Without Prejudice save as to Costs” and contained within it an offer to settle the question of costs with a payment by the plaintiff to the defendant in an amount of $44,000.
- By email dated 18 August 2020, the plaintiff’s solicitors responded rejecting the defendant’s offer to settle, stating that the objective of the client’s litigation has been achieved because the defendant had removed from his blog the publication made on or about 16 June 2015 and refrained from further publishing matter of and concerning and defamatory of the plaintiff. The plaintiff solicitor’s proposed that the plaintiff would discontinue the proceedings on the basis that each party bear their own costs subject to the defendant giving an undertaking not to publish matter of and concerning, and defamatory of, the plaintiff in any form to the effect that the plaintiff has unlawfully taken the Islands from the Yacata People, that the plaintiff was for his own commercial gain using images of the Islands without permission, that the development was taking place without concern for the local environment, and that the plaintiff was exploiting the Yacata People and marine resources for his own commercial gain.
- On 21 August 2020, the solicitors for the defendant responded, making what was described as a final offer to the plaintiff to compromise the proceedings and stating that the defendant would be willing to accept the amount of $38,500 for his costs. In that email, it was noted that there had been a failure by the plaintiff to advance the proceedings since November 2016.
- By way of response on 2 September 2020, the plaintiff’s solicitors filed this application, in which the plaintiff sought leave to discontinue and the payment of his costs by the defendant, or in the alternative, there be no order as to costs.
Submissions in this application
- The discontinuance of the proceedings by the plaintiff is not opposed but both parties sought to agitate the issue of costs.
- The plaintiff made his submissions on the basis that the proceedings had been rendered unnecessary by the voluntary cessation of the defamatory publications in issue in the proceedings. In making oral submissions, counsel for the plaintiff accepted that the publication complained of had been made unavailable for viewing by the public in or around early 2016.
- It was submitted that, by its defence the defendant had made serious allegations of misconduct including criminal offending by way of contumacious contempt and abuse of the court process which the plaintiff submitted should not have been made unless the defendant was willing and able to pursue them. It was submitted that the defendant had taken no action in almost four years.
- It was further submitted that, in any event, the plaintiff ought have an order that the defendant pay the costs of the strike-out application filed 11 July 2016 on the basis that the plaintiff was substantially successful in that application. Given the order as to costs had in fact already been made, this submission does not need to be addressed further.
- Finally, it was submitted that the plaintiff should not be criticised for not pursuing the damages claim when circumstances changed.
- The defendant’s position is that there is nothing about the circumstances of the application or the proceedings generally which would cause a departure from the general rule that when a plaintiff has commenced proceedings, and then decided to discontinue without substantial satisfaction of the relief claimed in the proceedings, the discontinuing plaintiff ought pay the costs of the proceedings.
- Rule 304 of the Uniform Civil Procedure Rules 1999 (Qld) provides that
“after being served with the first defence or first affidavit in reply, a plaintiff or application may discontinue a proceeding or withdraw part of it only with the court’s leave or the consent of the other parties.”
- In terms of costs, r 307 provides that:
“(1) A party who discontinues or withdraws is liable to pay —
- the costs of the party to whom the discontinuance or withdrawal relates up to the discontinuance or withdrawal; and
- the costs of another party or parties caused by the discontinuance or withdrawal.
- (2)If a party discontinues or withdraws with the court’s leave, the court may make the order for costs it considers appropriate.”
- The first defence was served long ago and as the defendant was not consenting to the discontinuance on the terms proposed, the plaintiff sought leave to discontinue, enlivening the discretion referred to in r 307(2); that much was not disputed by counsel and both counsel referred to the analysis as to the exercise of the discretion conducted by Bond J in Fairfield Services Pty Ltd (In liquidation) & Anor v Leggett & Anor.
- In Fairfield, Bond J set out a series of considerations which he considered should influence the exercise of the discretion where a plaintiff seeks to withdraw from the continued prosecution of a proceeding by discontinuing without any hearing on the merits. It is unnecessary to set out all of those principles here.
- His Honour commenced with the starting position that costs discretions are truly discretionary and that there were no absolute rules; only that the discretion must be exercised judicially, so that the court arrives at the order it thinks just in the particular circumstances of the case.
- His Honour ended with a discussion as to onus. Bond J observed that the principle and policy underlying the r 681 general rule, as explained by McHugh J in Oshlack v Richmond River Council, support the outcome dictated by r 307(1). Bond J then commented:
“It seems to me to follow that if the only information before the Court is that the proceeding was discontinued but at a date after the first defence had been filed, there would be no reason not to exercise the r 307(2) discretion in the same way as suggested by r 307(1). In such a case, it would be difficult to see why plaintiffs who discontinue before the first defence must pay their opponent’s costs, but plaintiffs who wait to discontinue for months or years after the first defence should not. Without more, those facts would normally be regarded as demonstrating a strong ground to award costs against the discontinuing plaintiffs: cf Zhao v Suzhou Haishun Investment Management Co Ltd. But there might well be some particular reason why the discontinuing plaintiffs should not pay an opponent’s costs, or indeed, why the opponent should pay the costs of the discontinuing plaintiffs. Ordinarily, the law expects that “he who asserts must prove”: Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) (2009) 254 ALR 661 at  per Keane JA. At least on that basis, the party seeking a particular exercise of the costs discretion must demonstrate why it is appropriate.”
- Counsel for the defendant maintained that the effect of the observations by Bond J were that, when a plaintiff waits to discontinue for months or years after the first defence, then in those circumstances the facts would normally be regarded as demonstrating a strong ground to award costs against the discontinuing plaintiff. If the plaintiff wishes to avoid the operation of that tendency or presumption then the plaintiff bears the onus of showing that there was some good reason a different form of costs order, that is an order not requiring the plaintiff to pay the defendant’s costs, should be made. In support of that submission, counsel referred to Court of Appeal decisions in Bucknell v Robins and Santer & Anor v Luddy  and the decision by Bond J in Re: Queensland Nickel Pty Ltd (In Liquidation).
- Counsel for the plaintiff maintained that the effect of the comments of Bond J in Fairfield is not to create a default position but rather to simply require in each case an analysis of the circumstances.
- Relevant in this respect were the further observations by Bond J to the effect that in evaluating relevant considerations there is a distinction between cases where one party has effectively surrendered to the other and cases where a supervening event removes or modifies the subject of dispute. It was said that in the former type of case, the surrender or capitulation will usually provide a strong reason to award costs against the party who has surrendered or capitulated. In the latter type of case there may be difficulty in discerning a clear reason why one party rather than the other should bear the costs, and that might provide a good reason to decide that each party should bear their own costs.
- In support of an order for costs, counsel for the plaintiff submitted that the operative reason for the proceedings not being pursued was the unilateral conduct of the defendant in withdrawing the publications prior to any order being made; a matter which it was said was entirely in the hands of the defendant and amounted effectively to a surrender by the defendant. It was submitted that the plaintiff should not be criticised, and deprived of his costs, for deciding not to pursue his claim for damages when circumstances changed.
- The problem with this submission is that shortly after the proceedings were commenced the defendant said he agreed to withdraw the blog and was met with an offer containing terms that extended well beyond the relief the plaintiff might have obtained in any proceedings; consistent with what the defendant pleads were the real purpose of the proceedings.
- The defendant did take down the blog early after proceedings were commenced, but did so in response to pressure being applied by the plaintiff, again in a respect which was also unrelated to the proceedings.
- In addition, the plaintiff brought an application with respect to the defendant’s pleading; which was essentially to require the pleading of more material facts and the ultimate effect of which was to enlarge considerably the scope of the factual issues in contention.
- Despite the amended defence, no reply was ever filed. Despite being provided with a list of documents, the plaintiff decided to take no further step in the proceedings. Despite becoming aware that the defendant had taken down the blog, the plaintiff left proceedings on foot for an injunction and for a total of $250,000 in damages.
- Even when offering shortly prior to this application to discontinue the proceedings with each party bearing their own costs, the plaintiff sought an undertaking that the defendant would not publish further matter concerning the plaintiff.
- In short, I reject the contention by the plaintiff that the defendant surrendered or capitulated in any relevant way. I accept the uncontested evidence that the blog was removed by the defendant early in 2016 because of the threat by the plaintiff. By his pleading, as the plaintiff says, the defendant strenuously denies being liable for defamation.
- To the extent that there was a supervening event which, on one view, might have made the proceedings unnecessary, that was caused by the threats of the plaintiff which the court could not possibly count in his favour. In any event, the removal of the blog was clearly not the only purpose of the litigation; as the written correspondence from the plaintiff and the pleading shows.
- The plaintiff issued proceedings and now wishes to discontinue them. There is no reason not to exercise the discretion in the way r 307(1) suggests. Indeed, having regard to the conduct of the plaintiff, there is every reason to exercise the discretion in favour of the defendant.
- In granting leave to discontinue, the plaintiff will be required to pay the defendant’s costs.
- The orders will be that:
- The plaintiff have leave to discontinue the proceedings; and
- The plaintiff pay the defendant’s costs of the proceedings, excluding the defendant’s costs of the strike out application, but including the costs of this application.
 QSC 183 (Fairfield).
(1998) 193 CLR 72.
Fairfield at .
 QCA 474.
 QCA 217.
 QSC 88.
Fairfield at  citing One.Tel v Deputy Commissioner of Taxation (2000) 101 FCR 548 at .
Fairfield at  citing Zhao v Suzhou Haishun Investment Management Co Ltd  VSCA 34 at .
Fairfield at  citing as examples Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; Commonwealth Bank of Australia v Daleport Pty Ltd (in rec) (No 6)  NSWSC 958; and True Conservation Association Inc v Minister Administering the Threatened Species Conservation Act 1995  NSWLEC 221.
- Published Case Name:
Jannard v Dalituicama
- Shortened Case Name:
Jannard v Dalituicama
 QDC 278
16 Nov 2021