Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 2) [2017] NSWDC 18

Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 2) [2017] NSWDC 18

The plaintiff was heard on her adjournment application, attended court, declined the judge's request to remain, and chose to leave after saying her position was in her written material. The orders were not made against good faith or in her absence within UCPR rr 36.15 and 36.16, and there was no basis to set them aside or stay the proceedings. The suppression application failed because no necessity to displace open justice was shown. The plaintiff's application was hopeless in circumstances warranting indemnity costs.

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Defamation and Injurious Falsehood Proceedings / Procedural Ruling on the Plaintiff's Notice of Motion to Set Aside Orders, Stay the Proceedings, and Oral Application for Suppression or Non Publication
Outcome
Plaintiff's notice of motion dismissed; oral suppression application refused; indemnity costs ordered against the plaintiff.
Legal Topics
['setting Aside Orders Under UCPR Rr 36.15 and 36.16' 'procedural Fairness' 'absence From Hearing' 'open Justice' 'indemnity Costs' 'address for Service']
['practice and Procedure' 'defamation' 'injurious Falsehood' 'costs' 'suppression and Non Publication Orders'] ['setting Aside Orders Under UCPR Rr 36.15 and 36.16' 'procedural Fairness' 'absence From Hearing' 'open Justice' 'indemnity Costs' 'address for Service']

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Procedural Posture

Defamation and Injurious Falsehood Proceedings / Procedural Ruling on the Plaintiff's Notice of Motion to Set Aside Orders, Stay the Proceedings, and Oral Application for Suppression or Non Publication

Legal Issues

  1. 1 ['Whether the orders made on 2 February 2017 should be set aside under UCPR r 36.15(1) as made irregularly, illegally or against good faith.' 'Whether the orders should be set aside under UCPR r 36.16(2)(b) or r 36.16(3) because the plaintiff left the hearing before it concluded.' "Whether the plaintiff's judgments should be suppressed or not published on CaseLaw." "Whether the plaintiff should pay the defendants' costs of the notice of motion on an indemnity basis."]

Ratio Decidendi

The plaintiff was heard on her adjournment application, attended court, declined the judge's request to remain, and chose to leave after saying her position was in her written material. The orders were not made against good faith or in her absence within UCPR rr 36.15 and 36.16, and there was no basis to set them aside or stay the proceedings. The suppression application failed because no necessity to displace open justice was shown. The plaintiff's application was hopeless in circumstances warranting indemnity costs.

Court Disposition

Plaintiff's notice of motion dismissed; oral suppression application refused; indemnity costs ordered against the plaintiff.

Orders

  • ["The plaintiff's notice of motion filed 2 February 2017 dismissed." "Plaintiff is to pay the defendants' costs of the notice of motion, including the costs of preparation and appearances today in relation to both matters, on an indemnity basis." 'The plaintiff\'s oral application for any judgment to be...