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District Court 19 August 2021

B1 v B2 (No.7)

[2021] NSWDC 420

Other
PRACTICE AND PROCEDURE

Citation: B1 v B2 (No.7) [2021] NSWDC 420
Court: District Court of New South Wales
Date: 19 August 2021
Judge: Gibson DCJ

Background

The plaintiff commenced defamation proceedings in June 2017 against his former wife, the defendant, after she published two Facebook posts alleging he had been violent toward her and had abused their two children. The plaintiff pursued the litigation aggressively, bringing applications to strike out the defence and obtaining freezing orders over several years.

Two months after the defamation proceedings were commenced, the plaintiff was charged with 13 criminal offences against the two children. In December 2018, a jury convicted him on 11 of those 13 counts, including aggravated indecent assault and aggravated acts of indecency against both children. His appeal avenues were ultimately exhausted.

With his convictions confirmed and his prospects of success at trial having evaporated, the plaintiff applied for leave to discontinue the defamation proceedings. The sole question before the court in this seventh judgment was the appropriate costs order.

  • Whether the court should grant leave to discontinue the proceedings under UCPR Part 12.
  • What costs order was appropriate in the circumstances, having regard to the plaintiff's conduct of the litigation.
  • Whether indemnity costs were warranted under s 40 of the Defamation Act 2005 (NSW), on the basis of abuse of process, or both.
  • Whether existing interlocutory costs orders should be vacated and replaced with a single consolidated costs order.

Decision

Gibson DCJ granted leave to discontinue but imposed indemnity costs on the plaintiff. The court found the plaintiff's conduct of the proceedings warranted this outcome on multiple grounds.

The court rejected the plaintiff's submission that his decision to discontinue was timely and responsible. The plaintiff had been convicted in December 2018 but continued to seek stays of proceedings for nearly three years while his appeals were pending. The court characterised this pattern as an attempt to preserve the defamation action for a time more favourable to the plaintiff, keeping his options open in the hope of a successful appeal.

The court also addressed the character of the proceedings more broadly. It found the defamation action bore the hallmarks of an abuse of process: the proceedings appeared designed to have allegations of sexual misconduct ventilated in a defamation forum, where the opponent would be the plaintiff's unrepresented former wife rather than an experienced prosecutor, and without the procedural and evidentiary safeguards of a criminal court. The court noted that defamation actions brought in parallel with criminal proceedings involving allegations of a sexual nature represent a recognised indicator of potential abuse.

Even setting aside abuse of process, the court found that any claim for damages was plainly hopeless. The defendant held a defence of justification arising directly from the convictions, and s 42 of the Defamation Act permitted the tender of those convictions in mitigation of damages in any event. The plaintiff's concession that success was "unlikely" was, in the court's assessment, a significant understatement.

Orders Made

  • Leave granted to the plaintiff to discontinue the proceedings.
  • All existing costs orders in the proceedings were vacated.
  • In place of those orders, the plaintiff was ordered to pay 80% of the defendant's costs of the entire proceedings on an indemnity basis.

Key Takeaways

  • Indemnity costs may be awarded in defamation proceedings under s 40(1)(b) of the Defamation Act 2005 (NSW) where the plaintiff's conduct of the litigation is found to have been an abuse of process.
  • A plaintiff who continues to maintain defamation proceedings after criminal conviction for the conduct the defendant alleged, and who then seeks repeated stays pending an ultimately unsuccessful appeal, risks significant adverse costs consequences.
  • Defamation proceedings commenced in parallel with criminal proceedings involving allegations of a sexual nature represent a recognised indicator of potential abuse, particularly where the proceedings would expose a lay defendant to litigation without the procedural protections of a criminal court.
  • Where multiple interlocutory costs orders have been made across lengthy proceedings, the court may vacate all of them and substitute a single consolidated "broad axe" costs order expressed as a percentage, in the interests of streamlining the assessment process: see AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1519.
  • A criminal conviction for the conduct the subject of alleged defamatory imputations is likely to be fatal not only to the claim itself, but also to any mitigation of damages, given the operation of s 42 of the Defamation Act 2005 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61, 61M(2), 61O(1)
- Defamation Act 2005 (NSW) ss 40, 42
- Felons (Civil Proceedings) Act 1981 (NSW) s 6(2)
- Uniform Civil Procedure Rules 2005 (NSW) Part 12

Cases
- AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (Costs) [2010] NSWSC 1519
- Calderbank v Calderbank (1975) 3 All ER 333
- Dye v Commonwealth Securities Limited [2012] FCA 242
- Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
- Haddad v Nationwide News Pty Limited (No 7) [2015] NSWSC 1814
- Leichhardt Municipal Council v Green [2004] NSWCA 341
- Lesses v Maras (No 3) [2017] SASCFC 154
- Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
- Packer v Meagher [1984] 3 NSWLR 486
- Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
- Prior judgments in these proceedings: B1 v B2 [2017] NSWDC 252; (No.2) (12 February 2018); (No.3) [2018] NSWDC 108; (No.4) [2018] NSWDC 497; (No.6) [2020] NSWDC 779