Carlovers Carwash Ltd & Ors v Sahathevan [2001] NSWSC 351

New South Wales Supreme Court

CITATION : Carlovers Carwash Ltd & Ors v Sahathevan [2001] NSWSC 351 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20539/00 HEARING DATE(S) : Wednesday 2 May 2001 JUDGMENT DATE : 2 May 2001

Carlovers Carwash Limited (first plaintiff) Tan Sri Dato Sri Vincent Tan Chee Yioun (second plaintiff) Andrew Kok Leng Teh (third plaintiff) PARTIES : Freddie Hock Cheng Pang (fourth plaintiff) Suzianna Chie Hie Wong (fifth plaintiff) Francis Kok Chuan Lee (sixth plaintiff) Ganesh Sahathevan (defendant) JUDGMENT OF : Michael Grove J at 1

COUNSEL : J.S. Wheelhouse (1,2,4,5,6 Plaintiffs) J. Gibson (Defendant) SOLICITORS : Dibbs Barker Gosling (1,2,4,5,6 Plaintiffs) Taylor & Scott (Defendant) CATCHWORDS : DISCONTINUANCE OF ACTION - LEAVE - CONDITIONS - PROTECTION OF ADVANTAGE TO DEFENDANT LEGISLATION CITED : Fair Trading Act CASES CITED : Covell Matthews v French Wools Ltd (1977) 1 WLR 879 Ritz Hotel Ltd v Charles of the Ritz Ltd 12 Intellectual Property Reports 75 DECISION : Leave granted to plaintiffs to discontinue action # 5110/99 on conditions.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 2 May 2001

20539/00 - CARLOVERS CARWASH LIMITED & ORS v GANESH SAHATHEVAN

JUDGMENT

1 HIS HONOUR: I have reached a firm conclusion as to the order that I should make in the matter presently before the Court and whilst I might express myself more felicitously were I to reserve, I consider in the circumstances and given the issues that I should proceed to give brief reasons and make the orders which I have determined upon. 2 Today there is before the Court a motion by the first, second, fourth, fifth and sixth plaintiffs in an action seeking leave to discontinue the whole of the proceedings upon terms that those plaintiffs pay the costs of the defendant of the proceedings. 3 I shall return to make further reference to another term which has since been the subject of open offer. The third plaintiff has not appeared and has not participated in the hearing. 4 The motion is brought in proceedings which originated in action by the plaintiffs founded upon the publication by the defendant of two electronic-mail messages. Each of these was dispatched to a variety of addressees and the first was sent on 14 November 1999 and the second on or about 11 January 2000. 5 It suffices for present purposes to refer to the amended statement of claim and it is unnecessary for me to elaborate upon the matter beyond observing that claims were made pursuant to the Fair Trading Act and also pursuant to the tort law of defamation. 6 There have been interlocutory hearings. As a result of a judgment in one of these it became apparent that the pursuit of the claim founded upon the Fair Trading Act would not be successful. It can be inferred that this was a significant factor in the decision of the plaintiffs, excluding the third plaintiff, to seek leave to discontinue the proceedings. 7 The whole of the dispute which has occupied the Court today has focussed upon assertions that the defendant requires protective orders in order not to deprive him of advantage which he has in the present litigation. 8 The principle to be applied has been stated by Graham J in Covell Matthews v French Wools Limited (1977) 1WLR at p879. His Lordship there said: "The principles to be culled from these (certain references) cases are in my judgment that the Court will normally at any rate allow a plaintiff to discontinue if he wants to provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The Court should, therefore, grant leave if it can without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved." 9 That approach has been applied in this Court in Ritz Hotel Limited v Charles of the Ritz Limited 12 Intellectual Property Reports 75. 10 The defendant is a journalist. He apparently works in a freelance fashion and, at least so far as the present litigation reveals, has an interest in what might be described as business journalism. 11 There is evidence that he was formerly employed in Malaysia and, further, that there are current proceedings instituted by him before the courts of that nation seeking redress for wrongful dismissal. He has also stated, and no challenge is made to this, that he fears repercussions of a serious nature if he were to return physically to Malaysia. 12 There is also evidence that at least some of the present plaintiffs have commenced proceedings of some sort in the courts of Malaysia. 13 In very broad terms the fears of the defendant arise out of the circumstance that, if the plaintiffs are permitted to discontinue these proceedings they may institute similar proceedings in Malaysia and obtain a judgment against him, probably in his absence, and then seek to avail themselves of reciprocal arrangements whereby any such judgment may be enforced against him here in Australia. I understand it not to be disputed that the defendant is resident in Australia and is an Australian citizen. 14 In the course of submission reference was made to litigation in Australia or elsewhere but in my view focus should be confined to Australia or Malaysia. 15 On behalf of the defendant it was submitted that an order should be made pursuant to Pt 13 r 5 staying the current proceedings as an abuse of process. A number of factors were addressed which were said individually or in combination to demonstrate the existence of abuse. 16 It suffices in my view to say that I am unpersuaded that the commencement of these proceedings can be categorised as an abuse of process, nor am I satisfied that they have entered that category by anything which has happened since. 17 Miss Gibson of counsel for the defendant has pointedly drawn attention to the shield that she asserts would be available to the defendant if enforcement proceedings were taken against her client consequent upon any successful proceedings against him outside of Australia. 18 Prior to the luncheon adjournment I indicated to Mr Wheelhouse of counsel for the plaintiffs, with the exception of the third plaintiff, that my provisional view was that the defendant ought have some protection which could be assessed as relevantly equivalent to the advantage which he has in the present action. 19 It is to be noted that if leave to discontinue is given the defendant will not have a judgment in his favour which would, of course, be the consequence of a hearing which concluded in his favour or indeed discontinuance which took place after a hearing had commenced. 20 Consequent upon my indication an adjournment was sought and Mr Wheelhouse was able to contact appropriate persons from whom to obtain instructions in Malaysia, and he has stated that his clients are prepared to consent to conditions of payment of costs as assessed and, further, that no one of his clients should institute or continue proceedings in Australia or Malaysia based upon the publications of 14 November 1999 or 11 January 2000 which are sued upon in the current proceedings. 21 Miss Gibson has contended that such a condition does not sufficiently protect her client but for my part I am unable to perceive how anything beyond such a condition would not have the effect of advantaging the client beyond any position which he currently has. 22 I should note that Miss Gibson has also vigorously attacked the proposition that costs should be assessed. I have not ignored her submissions concerning the apparent burden of having costs assessed and perhaps ultimately enforced outside of this jurisdiction. It does not seem to me, however, that I should go beyond the ordinary processes of the Court in ordering the payment of costs. 23 It was submitted that an assessment of costs which is indicated in the draft minute of orders handed up on behalf of the defendant, was self-evidently modest and that, therefore, if there is to be an assessment the plaintiffs should pay the costs of the assessment in any event. 24 I do not claim any expertise in the quantification of costs. In any event I would anticipate that if the plaintiffs were to behave unreasonably in respect to the assessment of costs then the Court or Tribunal dealing with that matter would be sufficiently empowered to see that no injustice was visited upon the defendant. 25 I should make reference to the third plaintiff who has not appeared. In distinction from the other plaintiffs I do not have, through counsel, an express consent to the condition in the terms that I have already stated. There is evidence before me that none of the personal plaintiffs presently resides in Australia or is present or likely to be present within the jurisdiction. With particular reference to the absence of the third plaintiff I have reached the conclusion that the orders I make should apply to that plaintiff, even in the absence of the express consent. 26 Accordingly, I make the following orders. The plaintiffs are to have leave to discontinue action number 5110/99 upon the following conditions: 27 First, that no one of the plaintiffs shall institute or continue proceedings in Australia or Malaysia based upon the publications of 14 November 1999 and 11 January 2000 which are sued upon in these current proceedings, and that all six plaintiffs are to pay the defendant's costs of the proceedings to date, including the costs of the hearing today. 28 I note that any further costs incurred in connection with the assessment of costs should be dealt with in accordance with the procedures appropriate to such assessment. 29 It should be noted that, pro bono for the third plaintiff, Mr Wheelhouse has drawn my attention to the circumstance that the order for costs against the third plaintiff is made in the absence of any evidence of his knowledge of the proceedings today. 30 Given the history of this matter and the previous representation of all of the plaintiffs, I am of the view that the order should be made against all plaintiffs and should the third plaintiff come to feel that some peremptory injustice has been caused he may no doubt take such steps as he may be advised in the circumstances. I do not propose to vary the order. **********