Barrow v Ackland and Gibson - [2017] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2017 00361

IN THE MATTER of Sections 17(2)(a), 17(2)(b) and 17(3)(b) of the Defamation Act 2005 (Vic)

BETWEEN

DAVID CHARLES BARROW	Plaintiff
- and -
RICHARD ALAN ACKLAND	Defendant

AND

S CI 2017 00362

IN THE MATTER of Sections 17(2)(a), 17(2)(b) and 17(3)(b) of the Defamation Act 2005 (Vic)

BETWEEN

DAVID CHARLES BARROW	Plaintiff
- and -
JUDITH CLARE GIBSON	Defendant

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JUDGE:	Judicial Registrar Matthews
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2017, written submissions from plaintiff 23 May 2017
DATE OF JUDGMENT:	2 August 2017
CASE MAY BE CITED AS:	Barrow v Ackland & Gibson
MEDIUM NEUTRAL CITATION:	[2017] VSC 485

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DEFAMATION – Offers to make amends – Whether offer capable of acceptance – Application for defendants to pay expenses reasonably incurred – Defamation Act 2005 (Vic) s 17(2) – Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 – Ballas v Theophilos (No 2) (1957) 98 CLR 193.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant in proceeding S CI 2017 00361	Dr MJ Collins QC with Mr S Mukerjea	Banki Haddock Fiora
For the Defendant in proceeding S CI 2017 00362	Dr MJ Collins QC with Mr S Mukerjea	Globalex Tax & Legal

JUDICIAL REGISTRAR MATTHEWS:

Introduction

These proceedings concern applications by David Charles Barrow (‘Mr Barrow’) against Judith Clare Gibson, a judge of the District Court of New South Wales (‘Judge Gibson’) in proceeding number S CI 2017 00362 (‘Gibson Proceeding’) and against Richard Alan Ackland (‘Mr Ackland’) in proceeding number S CI 2017 00361 (‘Ackland Proceeding’).

Both proceedings were commenced by originating motions filed on 6 February 2017. By way of summonses issued in both proceedings on 13 April 2017, Mr Barrow seeks orders that the relevant defendant pay the expenses reasonably incurred by him as a result of accepting that defendant’s offer to make amends, to be assessed by the Court.

Mr Barrow’s applications are made pursuant to sections 17(2)(a) and (b) and 17(3)(b) of the Defamation Act 2005 (Vic) (‘the Act’).

By orders made in each proceeding on 7 April 2017 by the Honourable Justice John Dixon, the proceedings were ordered to be tried together. His Honour also made orders on that date referring the trial to me for hearing and determination,[1] on an estimate of one day. His Honour then made procedural directions for the filing and service of summonses and affidavits, and for Mr Barrow to provide discovery of certain documents to Judge Gibson and Mr Ackland.
[1]Pursuant to Order 84 of the Supreme Court (General Civil Procedure) Rules 2015.

Mr Barrow filed the following affidavits in support of his applications:

(a) Ackland Proceeding:

(i) affidavit of Mr Barrow affirmed 13 April 2017 (‘First Barrow Affidavit’), to which there were 15 exhibits comprising 671 pages, said to be pursuant to…

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.

Continue reading Barrow v Ackland and Gibson

Details

AGLC: Barrow v Ackland and Gibson [2017] VSC 485
Case: [2017] VSC 485
Decision Date: 2 August 2017

CaseChat Overview and Summary

Barrow brought an action for defamation against Ackland and Gibson, who published defamatory statements in a newspaper. The plaintiff sought an order for the defendants to pay the costs reasonably incurred in making an offer of amends. The defendants argued that the offer was not capable of acceptance, as it was conditional and vague. The matter was heard in the County Court of Victoria.

The court was required to determine whether the offer made by the plaintiff was capable of acceptance, and whether the defendants were liable to pay the costs incurred in making the offer. The court also had to consider whether the plaintiff was entitled to an order for the defendants to pay the costs under the Defamation Act 2005 (Vic) s 17(2). The court examined the relevant provisions of the Act and the cases of Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 and Ballas v Theophilos (No 2) (1957) 98 CLR 193.

The court found that the offer made by the plaintiff was capable of acceptance, despite its conditional and vague nature. The court held that the defendants were liable to pay the costs incurred in making the offer. The court noted that the relevant provisions of the Defamation Act 2005 (Vic) s 17(2) were intended to encourage defendants to make offers of amends, and that the court should not be too technical in assessing the validity of such offers. The court also held that the plaintiff was entitled to an order for the defendants to pay the costs under the relevant provisions of the Act.

The court ordered the defendants to pay the costs reasonably incurred by the plaintiff in making the offer of amends. The court also ordered the defendants to pay interest on the costs from the date of the offer until the date of the order.

Orders