Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd & Ors (No 2) [2015] QSC 203

SUPREME COURT OF QUEENSLAND CITATION: Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd & Ors (No 2) [2015] QSC 203 PARTIES: KESHWAR BABOOLAL (plaintiff) v FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (first defendant) TONY MOORE (second defendant) AMY REMEIKIS (third defendant) FILE NO/S: Supreme Court No 2564 of 2015 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 21 July 2015 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Flanagan J ORDER: The plaintiff pays 50% of the defendants’ costs of and incidental to the amended application to be assessed or otherwise agreed. CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – where the defendants were only partly successful in an application to strike-out 35 imputations pleaded in a defamation action – where both parties seek an order that the other side pay their costs of the application or alternatively 75% of their costs of the application – whether costs should follow the event PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN PORTION OF A CASE – where the defendants were only partly successful in an application to strike-out 35 imputations pleaded in a defamation action – where both parties seek an order that the other side pay their costs of the application or -- 1 of 4 -- 2 alternatively 75% of their costs of the application – whether costs should depart from the general rule Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684 BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64, cited COUNSEL: M A Polden for the plaintiff R J Anderson for the defendants SOLICITORS: Hall Payne Lawyers for the plaintiff Bennett & Philp Lawyers for the defendants [1] On 8 July 2015 the Court made orders striking out 12 imputations pleaded in the plaintiff’s further amended statement of claim and ordered that certain other imputations be pleaded in the alternative. Leave was given to the plaintiff to amend the further amended statement of claim in accordance with those Reasons.1 The parties were also invited to make submissions as to costs. The defendants provided submissions as to costs on 9 July 2015 and the plaintiff provided his submissions on 13 July 2015. [2] The defendants seek an order that the plaintiff pays the defendants’ costs of the application or alternatively that the plaintiff pays 75% of the defendants’ costs of the application. The order sought by the plaintiff is that the defendants pay the plaintiff’s cost of the application or alternatively 75% of the plaintiff’s costs of the application. The general rule as to the costs of an application is that they are in the discretion of the Court but follow the event unless the Court orders otherwise: r 681 of the Uniform Civil Procedure Rules 1999 (Qld). Rule 684(1) of the Uniform Civil Procedure Rules 1999 (Qld) permits the Court to make an order for costs in relation to a particular question in, or a particular part of, a proceeding. McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64 observed at [8]: “I adhere to the view I expressed in Australand Corporation (Qld) Pty Ltd v Johnson that ordinarily the fact that a successful plaintiff fails on particular issues does not mean that the plaintiff should be deprived of some of its costs, although it may be appropriate to award costs of a particular question or part of a proceeding where that matter is definable and separable and has occupied a significant part of the trial.” [3] In respect of r 681, the defendants submit that applying even the broader view of what constitutes the “event” or a “units of litigation” approach (as in Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 and Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26), the defendants have had sufficient success to support an order for costs in their favour.2 [4] Quite apart from the 12 imputations which were struck out and the imputations which were ordered to be pleaded in the alternative, at the hearing of the strike-out application 1 Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd & Ors [2015] QSC 196. 2 Defendants’ of submissions on costs dated 9 July 2015, [4]. -- 2 of 4 -- 3 a proposed further amended statement of claim was handed to the Court which in effect sought to address a number of concerns raised by the defendants. The defendants therefore submit that the plaintiff has now produced two defective statements of claim and the defendants should not be out of pocket because, in order to see a pleading capable of going to trial, they had to apply to the Court.3 [5] The amended application sought to strike out 35 of the pleaded imputations pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (Qld). The plaintiff did not press the imputations pleaded in paragraphs 5(e) and 11(k) of the further amended statement of claim. The plaintiff, however, submits that he has been successful in defending the amended application in that he has kept a clear majority of the imputations pleaded overall. This outcome according to the plaintiff justifies an order that the defendants pay the plaintiff’s costs of the application either in whole or in part. It may be accepted that the main thrust of the defendants’ submissions in seeking to strike out the imputations pleaded in paragraph 5 of the further amended statement of claim was that the reference to nepotism did not attach to the plaintiff and that he was “entirely unconnected with this issue”.4 This submission took considerable time to develop in the course of the hearing of the application and was ultimately unsuccessful. On the other hand, in the course of argument, Counsel for the plaintiff correctly conceded that certain imputations had to be reworded and others had to be pleaded in the alternative. [6] The result of the strike-out application is that whilst many of the pleaded imputations survived 12 had to be struck out and others pleaded in the alternative. The plaintiff was also given leave to re-plead in accordance with the Reasons. The strike-out application will therefore result in substantial amendments to the further amended statement of claim. [7] The plaintiff, however, submits that the defendants failed to facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense in accordance with r 5(1) of the Uniform Civil Procedure Rules 1999 (Qld). On 8 May 2015 the solicitors for the plaintiff wrote to the solicitors for the defendants requesting the defendants to identify: (a) the precise basis of the objection made to each imputation identified in the amended application, whether on the basis of form, capacity or not to differing in substance; (b) for any imputation objected to on the basis of form, the precise basis of the objection; and (c) for any imputations said not to differ in substance, the imputations in question. [8] Prior to the defendants delivering their submissions on 13 May 2015 (for the application listed for 15 May 2015), the defendants did not identify their objections to the statement of claim as requested. 3 Defendants’ of submissions on costs dated 9 July 2015, [3]. 4 Defendants’ outline of submissions dated 13 May 2015, [8]. -- 3 of 4 -- 4 [9] It is not entirely clear whether if a response had been forthcoming from the defendants the necessity of a hearing would have been avoided. A meaningful response from the defendants may however have shortened the hearing of the application which took in excess of three hours. [10] Given that the defendants were only partially successful in their strike-out application and wholly unsuccessful in relation to striking out the nepotism imputations, the appropriate order is that the plaintiff pays 50% of the defendants’ costs of and incidental to the amended application to be assessed or otherwise agreed. -- 4 of 4 --