An indigenous Fijian living in Queensland is awarded costs against the billionaire Oakley founder, who threatened the withdrawal of humanitarian aid if a blog was not removed.
In what has been a long and drawn-out matter, lawyers acting for Oakley sunglass founder James Jannard sought restraining orders against Queensland man Epi Dalituicama in December 2015, for a blog he had written in June of the same year, alleging Mr Jannard had unlawfully taken Vatuvara and Kaibu Islands from the Yacata People and was exploiting the marine resources for his own commercial gain.
The damages sought amounted to $250,000.
In January 2016, Mr Dalituicama approached Mr Jannard directly advising that he would remove the offending blog and requested they discontinue legal proceedings. However, the draft deed of settlement sent to Mr Dalituicama required him to pay legal costs of $10,000 and “permanently extricate himself from all discussions” between Mr Jannard and those acting on his behalf and/or the people of Yacata, regarding the development of the resort. Mr Dalituicama did not agree to the terms and filed a defence early in February 2016.
Mr Dalituicama alleged the motive behind the claim was to place financial and commercial pressure on him and he was significantly distressed when the solicitors acting for Oakley founder suggested that the assistance being provided to the Yacata People, following Tropical Cyclone Winston, may be in jeopardy because of the matters raised by Mr Dalituicama in his Defence.
Not wishing to adversely impact the financial assistance being provided by Mr Jannard to the people in the village who were affected by cyclone Winston, Mr Dalituicama removed the blog.
Over the next four years proceedings stalled, with Mr Jannard advising his lawyers in 2017 to let the matter rest for a few months as the “primary objective in initiating this proceeding which is to compel the Defendant to take down the defamatory allegations made against him in the Blog” had been achieved.
In August 2020, Mr Dalituicama’s lawyers wrote to Mr Jannard’s lawyers that he intended to make an application to have the proceedings dismissed and sought costs of $44,000.
This offer was rejected by Mr Jannard’s lawyers who proposed that each party pay their own costs and that Mr Dalituicama agree to refrain from publishing any material about Mr Jannard that was defamatory or accused him of unlawfully taking the Islands from the Yacata People.
In a final offer, Mr Dalituicama’s lawyers proposed that Mr Jannard pay $38,500 in costs noting that they had failed to “advance proceedings since November 2017”.
In response Mr Jannard’s lawyers argued that the removal of the blog did not necessitate the need to further proceedings “on the basis that the proceedings had been rendered unnecessary by the voluntary cessation of the defamatory publications in issue in the proceedings”.
The judge presiding over the matter, Suzanne Sheridan noted when ruling in favour of Mr Dalituicama, “In short, I reject the contention by the plaintiff that the defendant surrendered or capitulated in any relevant way. I accept the uncontested evidence that the blog was removed by the defendant early in 2016 because of the threat by the plaintiff.” She also noted that, “having regard to the conduct of [Mr Jannard], there is every reason to exercise the discretion in favour of [Mr Dalituicama]”.
Alistair Macpherson, Corney & Lind Managing Director and lawyer acting for Mr Dalituicama said, “this was a win for the little guy. At Corney & Lind, we felt privileged and honoured to have been able to defend the interests and rights of both Epi D and his Fijian community”.
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24 November 2021