District Court New South Wales Medium Neutral Citation: Boros v Swann [2014] NSWDC 227 Hearing dates: 23 October 2014 Decision date: 23 October 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) On the application of the plaintiff, who acknowledges any further action is out of time, these proceedings are discontinued. (2) The plaintiff is to pay the costs of the defendant of these proceedings. Catchwords: COSTS - Plaintiff brings proceedings for an oral statement which was "false and made maliciously" and "published further", and seeking declaratory relief - defendant brings an application to strike out the statement of claim, asserting failure to identify a cause of action, challenging jurisdiction for the relief sought, raising limitation and pleadings issues and seeking a transfer to the Sydney Defamation List - defendant's application for a transfer and a hearing of his challenges to the pleading refused - defendant ordered to file defence - defendant brings fresh application for transfer from the Parramatta registry which is granted - plaintiff seeks leave to discontinue but argues that he was successful in the proceedings until they were transferred to the Sydney registry- whether the usual consequences of discontinuance (UCPR rr 42.9 and 42.20) should be varied - plaintiff ordered to pay defendant's costs of the discontinued proceedings Legislation Cited: Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 42.9 and 42.20 Cases Cited: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Packer v Meagher [1984] 3 NSWLR 486 Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107 Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 Walter v Buckeridge [2013] WASC 313 Texts Cited: District Court Civil Practice Note 6 Category: Principal judgment Parties: Plaintiff: Attila Boros Defendant: Christopher Swann Representation: Plaintiff: In person Defendant: Mr M Richardson Plaintiff: In person Defendant: Clayton Utz File Number(s): 2014/1451874 Publication restriction: None Judgment 1The plaintiff is the managing director of the Page Group of companies, which includes Pages Hire Centre (NSW) Pty Ltd and the director and secretary of Sydney Harbour Expo@ Glebe Island Pty Ltd. The defendant is the chief executive of Infrastructure NSW. 2The plaintiff was the head of a consortium tendering for the development of a temporary convention centre on Glebe Island and in that capacity attended a meeting in May 2013 (the date of which is disputed) in the course of which someone (the statement of claim, in paragraph 7, does not identify whom) "published in the nature of oral statements words to the effect and which were directed to the plaintiff: "You have no funds". Paragraph 8 recites that this statement was "false and was made maliciously" as a basis for not contracting with the plaintiff and/or Sydney Harbour Expo@ Glebe Island Pty Ltd, with "the intent to damage the reputation of the plaintiff" and with the knowledge that it was false. 3The statement of claim goes on to plead that the statement was false and malicious and that it had been "published further" (paragraph 15), although no dates or details of these further publications are given. The evidence for this is that another company made an unsolicited offer of assistance with funding, which the plaintiff says occurred "as a result of the defamatory statement". 4In paragraph 16 the plaintiff says he has suffered "loss and damage to his financial, credit and business reputation and has been criticised for not having the money to complete the Glebe Island contract when he had already been selected as the preferred supplier". The relief claimed was: (a)A declaration that the statement made by the defendant was defamatory; (b)An order that the defendant pays to the plaintiff damages arising from the publication of the statement; (c)Costs (d)Such further or other order as this Honourable Court seems [sic] fit. 5The plaintiff, who acts for himself, filed these proceedings in the District Court registry at Parramatta. On the first return date the defendant's legal representatives complained that, whether the claim was for defamation, or for injurious falsehood, or some other cause of action, it was not properly pleaded. According to Mr Richardson, those complaints were that, if it was a defamation claim, no imputations were pleaded and there was a defence under s 14B Limitation Act 1969 (NSW); if it was a claim for injurious falsehood, no special damage was pleaded; and if it was some other cause of action it was unclear what it was. 6On 16 June 2014, the defendant's legal representatives sought a transfer to the Defamation List in the Sydney Registry so that their objections to the form of the pleading could be heard in that list. The plaintiff opposed the transfer and submitted that the defendant should be ordered to file a defence immediately. He was successful in this regard, as the judge before whom the parties appeared made an order for the defence to be filed by 24 June 2014 and for the parties to attend a directions hearing before the Registrar on 7 August 2014. 7The defendant filed a "holding defence" which set out his arguments under the Limitation Act 1969 (NSW), denial of publication and objections to the statement of claim. When the matter came before the Registrar on 7 August 2014, the Registrar referred the matter back before the judge, noting the defendant's opposed application to transfer the proceedings to the Sydney Registry defamation list. 8On 22 August 2014 the proceedings came before another judge in the Parramatta District Court and were transferred to the Sydney Registry. They came before the List Judge on 3 October 2014, who transferred these proceedings to the defamation list on 10 October 2014, for the hearing of the defendant's Notice of Motion for summary dismissal of the proceedings. 9When the proceedings came before me on 10 October 2014 for the hearing of this motion, the plaintiff told me, as is set out in his email below, that he had "a raft" of cases in order to contradict the asserted claims of errors in his pleadings. He did not tell me whether this was a claim for defamation or injurious falsehood (or perhaps both), whether the statement was made about him personally or the consortium that he was heading (which had been the tenderer for the project) or whether the subsequent publications were fresh claims or republications and went to liability or damages only. I suggested that, rather than go ahead with the argument, I should adjourn the proceedings for two weeks so that he could seek legal advice. 10On 21 October 2014, the plaintiff wrote to the court advising that he had decided to discontinue the case. Part of that email contains material that may be protected by legal professional privilege that the plaintiff may not have intended to waive, so I shall not set that out. The relevant portion is as follows: "Faced with the challenges I find myself in a position where I am not capable of preparing for and arguing against the strike out motion in the Sydney Courts. I do understand that the consequences of this will result in my claim being dismissed and me being out of time on any further defamation action against Mr Swann. The demands of my business do not allow me any real time away from the business at the moment - for example the Company CEO is away to support her ailing parent and the company COO has been booked emergency surgery mid next week. I feel if directions and arguments were to be in Parramatta I may have been able appear but the business time lost in dealing with the matter - as complex as it now appears to be based on the advice of the barrister - makes proceeding with the claim in CBD Sydney impossible. I appreciate the court's indulgence and support thus far. The path that I took at Parramatta was to ensure I disrupted my business as little as possible. I now understand that that is not achievable." 11The defendant indicated that, if the proceedings were to be discontinued, he would seek costs. The plaintiff sent the following response prior to the hearing at 2:00pm on 23 October 2014: "I refer to your letter yesterday stating that the hearing today could involve the issue of legal costs. I advise that I will be unable to attend the Court today as I will be at a work site dealing with an urgent business matter. I apologise to the Court and to the defendant for this for that but due to staffing issues there is no one else to deal with the issue. I would seek that the Court order or the solicitors for the defendant agree to each party bearing their own costs. In support of my position I set out below the facts as I recall them:- 1. At the first directions hearing the Court denied the oral application by the defendant to relocate the proceeding to Sydney. This decision was made after I argued and the Judge acknowledged and agreed that my right to bring this action would be placed into a difficult if not impossible position if it was relocated. My understanding of what was said was that His Honour at the first directions hearing placed my right as the plaintiff before the convenience of the defendants solicitors and the defamation court . I felt that he did so as my commercial position as an employer had to be given consideration. 2. At the next direction hearing in front of the Registrar at Parramatta the issue of relocation was raised again. Initially the Registrar said "argument for the motion was compelling" in favour of the defendant but he then allowed me to argue my position and agreed that I had cause and pushed it back to the Judge to determine the defendant's application. 3. At the third directions hearing I was not given an opportunity to argue my position. I was simply told how complex Defamation is. The mater was to be transferred. No other motion was brought forward. I felt my treatment was very harsh and showed a total disregard by not allowing me the opportunity to argue my position. 4. At the fourth directions hearing when the matter was first heard in Sydney at the specialist Court, your honour was very adamant that I not argue alone and that I retain counsel. Whilst I did protest I felt I did not overstep the mark where I may have become offensive but I was prepared and I did have prepared notes to run through and a raft of cases to rely on. No matter what I said it was dismissed even confirming I would reset my own shoulder. 5. I say that I have followed the rule book. I was successful at the very first directions hearing for the absolutely correct reasons I say that everything beyond that was done with a disregard to the initial judgement/decision and that the defendants repeated their argument until they appeared before a Judge who agreed with them. I say that costs should not be awarded beyond the first directions hearing. In fact I was successful on that occasion. The subsequent minor attendances were before the Registrar who simply handed the matter to another Judge and then the matter as transferred to another Judge- all inconsistent with the initial orders. What has happened has not, in my opinion been caused by anything more than me seeking to proceed not unreasonably I think as per the orders on the first occasion. I do not feel I have done anything outside the Rules and that the transfer to the Sydney Court is for convenience more than anything else." 12The plaintiff appeared by telephone link up and repeated these submissions. Discontinuance of proceedings 13Where a party discontinues proceedings or is dismissed, Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 42.9 and 42.20, the defendant is entitled to costs unless the court, after hearing from the parties, otherwise orders: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365; Foukkare v Angreb Pty Ltd [2006] NSWCA 335 at [68]. These rules are default provisions but they nevertheless place an onus on the discontinuing party to make an application for the court to order otherwise, and place the onus on that party. The exercise of that discretion requires a sound reason for doing so: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107 at [21] - [29]. As a general rule, however, the discretion to depart from the rule will not be exercised where there has been an abandonment of the claim: Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 at 624. 14While there is no special rule in defamation proceedings, commencing proceedings and then abandoning them (Packer v Meagher [1984] 3 NSWLR 486 at 500) or flouting case management rules before discontinuing the proceedings (Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352) has resulted in an order for costs of the proceedings to be paid on an indemnity basis. 15The plaintiff submits that he was successful in his application, on the first return date, to force the defendant to file a defence, strike out the defendant's objections and prevent the transfer of the proceedings to Sydney. Precisely how successful he was is hard to determine, because there is no judgment, but I am prepared to accept that he was successful in large part. A considerable amount of the plaintiff's complaint is that subsequently the defendant made the same complaints to other judges, who wrongly permitted the defendant to bring the same application twice. 16The difficulty is, however, that success in defamation proceedings does not mean that an order for each party to pay its own costs will follow if those proceedings are subsequently abandoned. In the course of argument I referred the parties to Walter v Buckeridge [2013] WASC 313 where the plaintiff, unhappy with the slow progress which saw his defamation proceedings still not ready to take a hearing date after seven years, wrote to the court saying he wished to discontinue the proceedings because, despite winning the three interlocutory appeals brought by the defendant, the case "no longer carries any valuable or beneficial purpose for me" (at [2]). There could be no doubt of Mr Walter's success as at that date; unlike the plaintiff in these proceedings, he could point to a series of judgments at first instance and appeal where he had enjoyed not only success but costs orders. However, in deciding to discontinue the proceedings, Mr Walter put himself in a position where the court had to consider the position of both parties, and not just Mr Walter's success. 17Le Miere J stated: "[21] The plaintiff has, in effect, argued that the delay in the actions coming to trial has been caused by the manner in which the defendant has conducted the litigation. The defendant has taken many pleading points. The defendant has taken four appeals. However, there has been no finding that any of the applications, or appeals, brought by the defendant were frivolous, vexatious or otherwise improper. Furthermore, a review of the chronology of the actions discloses that there have been times during the proceedings when the plaintiff could have prosecuted the actions more expeditiously. [22] There has been no determination that the defendants infringed any right of the plaintiff by publishing the material complained of. The defendants have succeeded in resisting the plaintiff's claims in the sense that no relief has been granted in favour of the plaintiff against the defendants. The defendants were willing to proceed to trial. The plaintiff has chosen not to proceed to trial for the reasons I have set out earlier. It is not appropriate that the defendants should bear their costs of defending the proceedings." 18The defendant in these proceedings is in a much stronger position. While the plaintiff may consider that he had many authorities to support his position, if his claim was in defamation, he must comply with the provisions of UCPR r 14.30 and provide imputations, and that part of the relief he was seeking (namely a declaration) cannot be granted by this court. While the plaintiff may consider it unfair that he cannot conduct defamation proceedings in the Parramatta registry, District Court Civil Practice Note 6 dated 9 August 2005 makes it clear that claims for defamation and injurious falsehood must be conducted in the defamation list. The plaintiff's success on the first return date probably owes more to the opacity of his pleadings (which may have been mistaken for a commercial cause) than to any considered analysis of law or case management issues. 19The plaintiff has accordingly failed to discharge the onus of establishing why he should not pay the costs of these proceedings. Orders (1)On the application of the plaintiff, who acknowledges any further action is out of time, these proceedings are discontinued. (2)The plaintiff is to pay the costs of the defendant of these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2014