Aldridge v Johnston (No 2)

[2020] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

ALDRIDGE v JOHNSTON (No 2)

[2020] SASCFC 40

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)

22 May 2020

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS

Application by the respondent for costs of the appeal on an indemnity basis.

This Court dismissed an appeal against a judgment of the District Court awarding the plaintiff, the respondent on the appeal, damages in the sum of $100,000 in a defamation action. The trial Judge ordered that the defendant, the appellant on the appeal, pay the plaintiff’s costs on an indemnity basis. The plaintiff had, at different times, offered to accept $8,000 and $17,000 plus party/party costs. Shortly after the appellant instituted the appeal, the respondent filed an offer to consent to the appeal being allowed, an order reducing the judgment sum to $27,500 and an amendment of the costs order so that costs were payable on a party/party basis only.

Held per curiam, granting the application:

1.  None of the matters raised by the appellant are good reason to depart from the principle commonly applied that costs follow the event, and that indemnity costs should be awarded where a party substantially fails to obtain an award more favourable than an offer made.

2.  The appellant is to pay the respondent’s costs on an indemnity basis.

Johnston v Aldridge (No 2) [2018] SADC 72; Aldridge v Johnston [2020] SASCFC 31, considered.

ALDRIDGE v JOHNSTON (No 2)
[2020] SASCFC 40

Full Court:      Kourakis CJ, Peek and Hughes JJ

1. THE COURT:      This is an application for costs following the dismissal of an appeal[1] against a judgment of the District Court awarding the plaintiff, the respondent on the appeal, damages in the sum of $100,000 in a defamation action.  The trial Judge ordered that the defendant, the appellant on the appeal, pay the plaintiff’s costs on an indemnity basis[2] because the plaintiff had made two offers to accept much lesser sums than the $100,000 awarded.[3] The plaintiff had, at different times, offered to accept $8,000 and $17,000 plus party/party costs.

   [1]    Aldridge v Johnston [2020] SASCFC 31.

   [2]    The trial Judge ordered indemnity costs on and from 18 March 2017.

   [3]    Johnston v Aldridge (No 2) [2018] SADC 72.

2. The respondent applies for costs of the appeal on an indemnity basis.

3. Shortly after the appellant instituted the appeal, the respondent filed an offer to consent to the appeal being allowed, an order reducing the judgment sum to $27,500 and an amendment of the costs order so that costs were payable on a party/party basis only.

4. The appellant opposes the application for indemnity costs on the grounds that:

   ·his appeal was not devoid of merit;

   ·he never had the financial capacity to pay the amounts sought by the offers;

   ·the judgment of the Court was wrong and he intends to appeal to the High Court;  and

   ·the decision tends to stifle political discussion on social media.

5. None of the matters raised by the appellant are good reason to depart from the principle commonly applied that costs follow the event, and that indemnity costs should be awarded where a party substantially fails to obtain an award more favourable than an offer made.

6. Notwithstanding the Chief Justice’s dissent on one aspect of the appellant’s liability, the Court was unanimous in dismissing the appeal.  This Court must proceed on the basis that its decision is correct and that its judgment, therefore, does not limit debate any more than the law of defamation requires.  If the appellant successfully appeals to the High Court and the judgment is reversed, then consequential costs orders in the appellant’s favour will be made by the High Court. 

7. The appellant’s capacity to satisfy a judgment that might have been entered if he accepted the offer is irrelevant.  The offers made by the respondent did not require immediate cash payment by the appellant.  Indeed, the respondent’s offer to settle the appeal may well have reflected an appreciation of the respondent’s limited means.  The question for the appellant on receiving that offer was whether or not he should proceed with the appeal given the substantial reduction it offered in his existing liability under the District Court judgment.

8. For the above reasons, we order that the appellant pay the respondent’s costs on an indemnity basis.