United Land Council Ltd v The New South Wales Aboriginal Land Council

HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 13 May 2016. The proceedings have had an unusual history. When the proceedings were commenced, the only named plaintiff was United Land Councils Limited. At the time of the commencement of the proceedings that was a company duly incorporated in New Zealand and the company was extant. However, on 15 July 2016, the company was removed from the register and therefore no longer exists.

On 5 July 2016, a notice of motion was filed seeking leave to file an amended statement of claim joining a second plaintiff, Mr Richard Green. Mr Green was the sole director of United Land Councils Limited.

The proceedings have now been dismissed by consent. In circumstances where the corporate plaintiff no longer exists, I do not think I have authority to make a costs order against it; certainly, there is no utility in doing so. That is the order that would ordinarily follow from a dismissal or discontinuance.

Ms Chrysanthou, who appears for the defendant, has, in those circumstances, made an application this morning for an order that the costs be paid by Mr Green. The Court has authority to make a costs order against a non-party pursuant to section 98 of the Civil Procedure Act 2005 (NSW). The principles applicable to the exercise of that power are considered in the judgment of Campbell J in JJES Pty Limited v Sayan (No 2) [2014] NSWSC 975 at [14] to [19].

Having regard to those principles, I am satisfied that it is in the interests of justice to order Mr Green to pay the costs of the proceedings from the time when he sought to be joined as a plaintiff, primarily because he is in effect in the position of a party who has discontinued, albeit that the point at which he was to be joined as second plaintiff never arrived.

In reaching that conclusion I have had regard to the fact that Mr Green was the sole director of the now non-existent company and so the only person through whom that company could have acted in commencing the proceedings. However, I do not think Mr Green should be compelled to pay the costs of the whole of the proceedings in the absence of evidence of any conduct on his part warranting such an order in accordance with the principles stated in JJES. For those reasons, I order that the defendant's costs of the proceedings from 5 July 2016 be paid by Mr Green.