B1 v B2 (No.7) [2021] NSWDC 420

B1 v B2 (No.7) [2021] NSWDC 420

Given the plaintiff’s convictions for offences central to the imputations pleaded, continuation of the defamation claim was hopeless. The court has discretion under s 40 of the Defamation Act 2005 (NSW) to order indemnity costs for the defendant, as the plaintiff's prosecution of the action after conviction and his failure to discontinue earlier constituted unreasonable conduct. Existing costs orders are vacated and replaced by an order for plaintiff to pay 80% of the defendant's costs on an indemnity basis.

Jurisdiction
Australia
Judgment Date
19 August 2021
Procedural Posture
Defamation / Application for Leave to Discontinue and Costs Order After Plaintiff Seeks Discontinuance
Outcome
Leave to discontinue granted; plaintiff ordered to pay 80% of defendant's costs on an indemnity basis.
Legal Topics
['discontinuance of Proceedings' 'indemnity Costs' 'abuse of Process' 'application of S 40 Defamation Act 2005 (nsw)' 'freezing Orders in Interlocutory Proceedings']
['civil Procedure' 'defamation Law' 'costs'] ['discontinuance of Proceedings' 'indemnity Costs' 'abuse of Process' 'application of S 40 Defamation Act 2005 (nsw)' 'freezing Orders in Interlocutory Proceedings']

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Procedural Posture

Defamation / Application for Leave to Discontinue and Costs Order After Plaintiff Seeks Discontinuance

Legal Issues

  1. 1 ['Whether plaintiff should be granted leave to discontinue defamation proceedings' 'Appropriate costs order upon discontinuance, including indemnity basis' 'Whether plaintiff’s pursuit of the proceedings amounted to an abuse of process']

Ratio Decidendi

Given the plaintiff’s convictions for offences central to the imputations pleaded, continuation of the defamation claim was hopeless. The court has discretion under s 40 of the Defamation Act 2005 (NSW) to order indemnity costs for the defendant, as the plaintiff's prosecution of the action after conviction and his failure to discontinue earlier constituted unreasonable conduct. Existing costs orders are vacated and replaced by an order for plaintiff to pay 80% of the defendant's costs on an indemnity basis.

Court Disposition

Leave to discontinue granted; plaintiff ordered to pay 80% of defendant's costs on an indemnity basis.

Orders

  • ['Leave granted to plaintiff to discontinue proceedings subject to costs order.' 'All previous costs orders vacated.' "Plaintiff to pay 80% of defendant's costs on an indemnity basis."]