Amanatidis v Darmos (Costs) - [2011] VSC 216

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 08893 of 2009

BETWEEN

ARISTOTELIS AMANATIDIS	First Plaintiff
and
HELEN AMANATIDIS	Second Plaintiff
and
ANASTASIA DARMOS	Defendant

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2011
DATE OF JUDGMENT:	20 May 2011
CASE MAY BE CITED AS:	Amanatidis & Anor v Darmos (Costs) (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 216

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DEFAMATION – Costs – Awards within jurisdictional limit of Magistrates’ Court – Supreme Court (General Civil Procedure) Rules 2005, Order 63.24(1.1) – Supreme Court Scale of Costs ordered.

DEFAMATION – Costs – Defamation Act (2005) (Vic), s 40 – Whether failure to make or accept offer was reasonable – Conduct of the case – Indemnity costs considered - Party and party costs ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S K Wilson QC	Herbert Geer
Mr D Bracken
For the Defendant	Mr D Sanders	Kiatos & Co

HIS HONOUR:

On 29 April 2011, I published my reasons for judgment.[1] I awarded the first plaintiff $5,000 in damages and the second plaintiff $10,000 in damages. Both awards were inclusive of aggravated damages. I held that each of the plaintiffs had been defamed by the defendant. The nature and extent of the defamation and the circumstances, including those that gave rise to aggravated damages, are set out in the reasons.
[1]Amanatidis & Anor v Darmos [2011] VSC 163.

The remaining issue relates to costs. The plaintiffs submit that indemnity costs should be ordered under s 40 of the Defamation Act 2005 (Vic) (“the Defamation Act”). Alternatively, they submit that notwithstanding the amounts awarded, costs should be awarded on the Supreme Court scale. The defendant opposes the orders sought and submits that I should follow the relevant rules of Court in relation to costs, which should be on the usual party and party scale.

Indemnity costs?

There can be little dispute that costs should follow the event.

However, the plaintiffs rely on s 40 of the Defamation Act (and the broad discretion of the court) in submitting that indemnity costs should be awarded. On the usual principles that apply to an award of indemnity costs,[2] I would not be inclined to make such an order.
[2]Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Os (1988) 81 ALR 397, Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 231-234.

Section 40(1) of the Defamation Act provides that in awarding costs in a defamation proceeding the court may have regard to:

(a)the way in which the parties conducted their cases; and
(b)any other matters that the court considers relevant.

Section 40(2) provides that if costs are to be awarded to a successful plaintiff those costs are to be assessed on an indemnity basis (unless the interests of justice require otherwise) if the Court is satisfied that the defendant:

(a)unreasonably failed to make a settlement offer; or

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 216
Decision Date: 20 May 2011

CaseChat Overview and Summary

The matter between Amanatidis and Darmos involved a defamation claim brought before the court. The central issue was the determination of costs incurred during the proceedings. The case was heard in the Magistrates’ Court of Victoria, which has specific jurisdictional limits on the costs that can be awarded.

The court was tasked with deciding whether the costs awarded were within the Magistrates’ Court’s jurisdictional limit and if the Supreme Court (General Civil Procedure) Rules 2005, Order 63.24(1.1) were applicable. Additionally, the court considered whether the Supreme Court Scale of Costs should be ordered, as well as whether the failure to make or accept an offer to settle was reasonable under the Defamation Act (2005) (Vic), s 40. The conduct of the case and the appropriateness of indemnity costs were also examined.

The court found that the costs awarded were within the Magistrates’ Court’s jurisdictional limits. It applied the Supreme Court (General Civil Procedure) Rules 2005, Order 63.24(1.1) and ordered the Supreme Court Scale of Costs. The court concluded that the failure to make or accept an offer to settle was reasonable, considering the conduct of the case. Indemnity costs were not awarded, and party and party costs were ordered instead.

The final orders of the court included the approval of costs within the Magistrates’ Court’s jurisdictional limits, the application of the Supreme Court Scale of Costs, and the awarding of party and party costs.

Orders