Asbog Veterinary Services Pty Ltd v Barlow (No 2) - [2020] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Asbog Veterinary Services Pty Ltd & Anor v Barlow (No 2) [2020] QDC 204

PARTIES:

ASBOG VETERINARY SERVICES PTY LTD

ACN 010 316 248

TRADING AS ALBION VETERINARY SURGERY AND EATON HILLS VETERINARY SURGERY

(first plaintiff)

AND

ALAN STANISLAUS BRIAN O’GRADY

(second plaintiff)

v

CARRIE BARLOW

(defendant)

FILE NO/S:

4809 of 2014

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:
District Court at Queensland

DELIVERED ON:

26 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Sheridan DCJ

ORDER:

The defendant pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on an indemnity basis.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – where plaintiffs brought an action for defamation against the defendant – where judgment entered in favour of plaintiffs – where plaintiffs issued formal offer pursuant to Chapter 9, Part 5 Uniform Civil Procedure Rules 1999 (Qld) prior to trial – where formal offer rejected by defendant – whether plaintiffs are entitled to costs on the indemnity basis – whether costs should be assessed according to Magistrates or District Court scale

Defamation Act 2005 (Qld), s 40

Uniform Civil Procedure Rules 1999 (Qld), r 360, r 703

AL Powell Holdings Pty Ltd v Dick [2012] QCA 254, cited

Balnaves v Smith & Anor [2012] QSC 408, cited

Davis v Nationwide News Pty Ltd [2008] NSWSC 946, cited
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19, cited

Timms v Clift [1998] 2 Qd R 100, cited

Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 267, cited

COUNSEL:
D V Ferraro for the plaintiffs

Self-representation by the defendant

SOLICITORS:

Ferguson Cannon Lawyers for the plaintiffs

The substantive judgment and reasons were delivered on 11 June 2020.
At that time, orders were made for the filing of a consent order by 25 June 2020 if the parties could reach agreement, and in the absence of agreement, for the filing of submissions at to costs. The orders provided for the plaintiff to file submissions by 2 July 2020, the defendant to file submissions by 9 July 2020 and the plaintiffs to file any submissions in reply by 16 July 2020.
Subsequently, by email to my associate (copied to the plaintiffs’ solicitors) the defendant requested to be permitted to file submissions in response to the plaintiffs’ submissions. The defendant explained that she was now representing herself. Leave was granted and an order was made permitting the defendant to file further submissions in reply to the plaintiff’s final submissions. The defendant’s further submissions were received on 24 July 2020.
The plaintiffs seek an order for costs on an indemnity basis pursuant to s 40 of the Defamation Act 2005 (Qld) (the Act) and/or pursuant to r 703 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and/or pursuant to r 360 of the UCPR.
The defendant seeks an order for each party to pay their own costs or an order that…

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: [2020] QDC 204
Decision Date: 26 August 2020

CaseChat Overview and Summary

In the matter of Asbog Veterinary Services Pty Ltd v Barlow, the plaintiffs sought redress for defamation by the defendant, a case adjudicated in the Queensland District Court. The dispute centred around statements made by the defendant that allegedly damaged the plaintiffs' reputation in their professional capacity as veterinary service providers. The plaintiffs, after obtaining a favourable judgment, sought an order for costs on the indemnity basis, as stipulated by the Uniform Civil Procedure Rules 1999 (Qld), due to the defendant's rejection of a formal offer made before the trial.

The legal issues the court was required to decide included whether the plaintiffs were entitled to costs on the indemnity basis following the defendant's rejection of their formal offer, and if the appropriate scale for assessing these costs was that of the Magistrates Court or the District Court. The court needed to consider the implications of the formal offer under Chapter 9, Part 5 of the Uniform Civil Procedure Rules, and the precedents established by cases such as Green v Green and the interpretation of indemnity costs provisions.

The court found that the plaintiffs were entitled to costs on an indemnity basis due to the defendant's rejection of the formal offer. It was determined that the appropriate scale for assessing these costs was that of the Magistrates Court, despite the proceedings being heard in the District Court. The reasoning was based on the nature of the proceedings and the applicable statutory provisions which dictated the costs scale. The court relied on established principles and case law to conclude that the indemnity costs should be assessed according to the lower scale, reflecting the procedural context in which the offer was made and subsequently rejected.

The final orders were that the defendant would pay the plaintiffs' costs of and incidental to the proceedings, to be assessed on an indemnity basis, in accordance with the Magistrates Court scale. This decision underscored the importance of formal offers in litigation and the consequences of their rejection, emphasising the need for parties to consider such offers carefully to avoid unfavourable cost outcomes.

Orders

Orders of the court

The defendant pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Asbog Veterinary Services Pty Ltd & Anor v Barlow (No 2) [2020] QDC 204
PARTIES:	ASBOG VETERINARY SERVICES PTY LTD ACN 010 316 248 TRADING AS ALBION VETERINARY SURGERY AND EATON HILLS VETERINARY SURGERY (first plaintiff) AND ALAN STANISLAUS BRIAN O’GRADY (second plaintiff) v CARRIE BARLOW (defendant)
FILE NO/S:	4809 of 2014
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Queensland
DELIVERED ON:	26 August 2020
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Sheridan DCJ
ORDER:	The defendant pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on an indemnity basis.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – where plaintiffs brought an action for defamation against the defendant – where judgment entered in favour of plaintiffs – where plaintiffs issued formal offer pursuant to Chapter 9, Part 5 Uniform Civil Procedure Rules 1999 (Qld) prior to trial – where formal offer rejected by defendant – whether plaintiffs are entitled to costs on the indemnity basis – whether costs should be assessed according to Magistrates or District Court scale Defamation Act 2005 (Qld), s 40 Uniform Civil Procedure Rules 1999 (Qld), r 360, r 703 AL Powell Holdings Pty Ltd v Dick [2012] QCA 254, cited Balnaves v Smith & Anor [2012] QSC 408, cited Davis v Nationwide News Pty Ltd [2008] NSWSC 946, cited Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19, cited Timms v Clift [1998] 2 Qd R 100, cited Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 267, cited
COUNSEL:	D V Ferraro for the plaintiffs Self-representation by the defendant
SOLICITORS:	Ferguson Cannon Lawyers for the plaintiffs