Capilano Honey Ltd v Dowling (No 5) [2021] NSWSC 653

Capilano Honey Ltd v Dowling (No 5) [2021] NSWSC 653

Capilano was awarded ordinary costs because, although it proved injurious falsehood and malice, the judge was not satisfied that the defendant's conduct of the litigation should be characterised as an abuse of process or otherwise justified departure from the usual order, particularly given that some interlocutory conduct could be addressed by specific orders and the defendant was self-represented. Dr McKee was awarded indemnity costs because s 40 of the Defamation Act 2005 (NSW) applied: the defendant unreasonably failed to make a reasonable settlement offer, the defamation claim was overwhelmingly likely to succeed after most of the defence was struck out, and the defendant did not...

Jurisdiction
Australia
Judgment Date
11 June 2021
Procedural Posture
Costs in Defamation and Injurious Falsehood Claims / Costs Reserved After Verdicts and Judgments for the Plaintiffs; Determined on the Papers
Outcome
The defendant was ordered to pay Capilano's litigation costs on the ordinary basis and Dr McKee's litigation costs on an indemnity basis.
Legal Topics
['ordinary Costs' 'indemnity Costs' 'costs Follow the Event' 'injurious Falsehood' 'malice' 'settlement Offers' 'defamation Act 2005 (nsw), S 40']
['costs' 'defamation' 'torts'] ['ordinary Costs' 'indemnity Costs' 'costs Follow the Event' 'injurious Falsehood' 'malice' 'settlement Offers' 'defamation Act 2005 (nsw), S 40']

Case Brief

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Procedural Posture

Costs in Defamation and Injurious Falsehood Claims / Costs Reserved After Verdicts and Judgments for the Plaintiffs; Determined on the Papers

Legal Issues

  1. 1 ["Whether the defendant should pay Capilano's costs on an ordinary or indemnity basis for the injurious falsehood claim." "Whether the defendant should pay Dr McKee's costs on an ordinary or indemnity basis for the defamation claim."]

Ratio Decidendi

Capilano was awarded ordinary costs because, although it proved injurious falsehood and malice, the judge was not satisfied that the defendant's conduct of the litigation should be characterised as an abuse of process or otherwise justified departure from the usual order, particularly given that some interlocutory conduct could be addressed by specific orders and the defendant was self-represented. Dr McKee was awarded indemnity costs because s 40 of the Defamation Act 2005 (NSW) applied: the defendant unreasonably failed to make a reasonable settlement offer, the defamation claim was overwhelmingly likely to succeed after most of the defence was struck out, and the defendant did not...

Court Disposition

The defendant was ordered to pay Capilano's litigation costs on the ordinary basis and Dr McKee's litigation costs on an indemnity basis.

Orders

  • ['The defendant, Mr Shane Dowling, must pay the costs of the litigation of the plaintiff Capilano Honey Ltd on the ordinary basis.' 'The defendant, Mr Shane Dowling, must pay the costs of the litigation of the plaintiff Dr Ben McKee on an indemnity basis.']