Barrow v Ackland and Gibson
[2017] VSC 485
•2 August 2017
| 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 |
---
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 order 5 of the orders made on 7 April 2017; and
(ii) affidavit of Mr Barrow affirmed 13 April 2017, said to be pursuant to order 4 of the orders made on 7 April 2017. This appears to be an affidavit of documents.
(b) Gibson Proceeding:
(i) affidavit of Mr Barrow affirmed 13 April 2017 (‘Second Barrow Affidavit’), to which there were 20 exhibits comprising 1011 pages, said to be pursuant to order 6 of the orders made on 7 April 2017;
(ii) affidavit of Mr Barrow affirmed 13 April 2017, said to be pursuant to order 5 of the orders made on 7 April 2017. This appears to be an affidavit of documents; and
(iii) Affidavit of Mr Barrow affirmed 10 May 2017 (‘Third Barrow Affidavit’).
No affidavits were filed on behalf of Mr Ackland.
Judge Gibson relied on an affidavit of Dr Ricky Jose Lee (her solicitor) sworn 10 May 2017 (‘Lee Affidavit’). The orders made on 7 April 2017 required the defendants to file and serve any affidavits upon which they relied by 5 May 2017. Judge Gibson sought leave to rely on the Lee Affidavit as it was not filed and served within time. Dr Lee informed the Court that due to the volume of material that Mr Barrow produced in chief (being the Second Barrow Affidavit) and to there being 2,568 pages of documents produced, his affidavit was not able to be finalised before he went overseas on 30 April 2017. Dr Lee informed the Court that an unsworn copy of his proposed affidavit was served on 5 May 2017 and a copy of the sworn affidavit was served on 10 May 2017, which did not differ in substance to the unsworn copy.[2]
[2]The Lee Affidavit was filed in Court; it had not been filed in the Registry prior to the hearing. Dr Lee informed the Court that as the earliest it could have arrived in Melbourne from Sydney was 12 May 2017, he did not want to risk the affidavit being delayed or lost in transit and so held onto the original to file it in Court at the hearing on 16 May 2017. A copy of the affidavit (and exhibits) was emailed to my Associate on 13 May 2017.
Mr Barrow complained about the lateness of the Lee Affidavit. In the Third Barrow Affidavit, Mr Barrow states that he received Dr Lee’s unsworn affidavit by email on 5 May 2017 and describes it as ‘an unsworn, voluminous (269 pages) affidavit’.
At the hearing, I granted leave (should such leave be necessary) to Judge Gibson to rely on the Lee Affidavit. Mr Barrow had had notice since 5 May 2017 of the contents of Dr Lee’s affidavit and was not been able to point to any prejudice to him associated with the sworn affidavit not being served on him until 10 May 2017. Further, the exhibits to Dr Lee’s affidavit were provided to Mr Barrow with the unsworn affidavit on 5 May 2017 and are, with the exception of two documents, all correspondence between the parties. Mr Barrow did not object to leave being granted.
The proceedings were managed and heard together, with the trial occurring on 16 May 2017.
Mr Barrow, a qualified solicitor, represented himself. Dr Collins QC appeared with Mr Mukerjea on behalf of Judge Gibson and Mr Ackland.
The defendants filed and served a written outline of submissions prior to the hearing. Mr Barrow filed a written outline in respect of the Ackland Proceeding on the morning of the hearing. During the course of the hearing, he sought and was given leave to file a written outline in respect of both proceedings within 7 days of the hearing. Mr Barrow subsequently did so, on 23 May 2017.
After each party had identified the evidence upon which they relied, the defendants’ counsel sought a direction pursuant to s 49 of the Civil Procedure Act 2010 (Vic) (‘the CPA’) to the effect that the order for submissions would be: first, the defendants; second, Mr Barrow; and then the defendants in reply. Mr Barrow consented to this direction being made.
Background
The Conference Paper and its publication
These proceedings both concern a conference paper delivered by Judge Gibson on 30 March 2015 (‘Conference Paper’) at the NSW State Legal Conference (‘the Conference’).
The Conference was organised by Michelle Castle, through her companies, Cloud 9 Conferences Pty Ltd, New South Wales State Legal Conference, and Erolbell Pty Ltd.
The Conference Paper was 25 pages long and was entitled ‘From McLibel to eLibel: Recent issues and recurrent problems in defamation law’. Mr Barrow complained that two references to him and his failed proceeding against Andrew Bolt, which included an assertion to the effect that Mr Barrow was bankrupt as a result of a costs order made against him in that proceeding (‘the Statement’), were defamatory of him. Relevantly, Mr Barrow’s complaint concerned the making of the Statement in the Conference Paper by Judge Gibson at the Conference, which was attended by no more than 15 people, and then the subsequent publication of copies of the Conference Paper.
Persons who attended the Conference received a copy of the Conference Paper.
A copy of the Conference Paper was published on the website of the Gazette of Law and Journalism (‘Gazette’), one of the proprietors of which is Mr Ackland; on the website of the District Court of New South Wales; and on the website of the International Forum for Responsible Media (‘Inforrm’).
A hyperlink to the Conference Paper was also published: by Judge Gibson via her Twitter account, by posting a link to the copy of the Conference Paper published on the Gazette’s website (‘Gibson tweet’); by the District Court via its Twitter account, by posting a link to the copy of the Conference Paper published on the District Court website (‘DoJ tweet’); by Leanne O’Donnell, a consultant, on her website, by posting a link to the copy of the Conference Paper published on the Gazette’s website (‘O’Donnell link’); by Ms O’Donnell via her Twitter Account, by posting a link to the copy of the Conference Paper published on the Gazette’s website (‘O’Donnell tweet’); and on the website operated by the proprietors of Crikey, Private Media Ltd (‘Crikey’) (‘Crikey link’).
It is not necessary, for the purposes of these applications, for me to consider or make any findings about whether the Statement was defamatory.
Chronology of concerns notices’ and offers to make amends
The defendants’ counsel set out a chronology of relevant events in their written outline of submissions, which I set out below. I have used this for convenience, noting that the matters referred to are uncontroversial and the chronology and descriptions are similar to those given by Mr Barrow.
(a) On 16 December 2015, Mr Barrow sent a letter to Judge Gibson in which he stated that the assertion made in the paper that he was bankrupt was false, and in which he invited Judge Gibson to participate in a mediation with him in order to ‘make this all right’ (‘First Concerns Notice’).[3]
[3]RJL-1, Lee Affidavit. Hereafter, references to ‘RJL-#’ are references to exhibits to the Lee Affidavit.
(b) The First Concerns Notice referred to the publication of the Conference Paper at the Conference and on the District Court website, and to the Gibson tweet. The First Concerns Notice made no reference to publication of the Conference Paper on the Gazette or Inforrm websites, and no reference to the District Court tweet, the DoJ tweet, the O’Donnell link, the O’Donnell tweet or the Crikey link.
(c) On 21 December 2015, Judge Gibson’s solicitor sent an offer of amends (‘First Gibson Offer’) to Mr Barrow in response to the First Concerns Notice, pursuant to section 15 of the Act.[4] The offer consisted of an offer to:
[4]RJL-2.
(i) amend the online version of the Conference Paper at the District Court website to remove and correct the assertion that Mr Barrow was bankrupt;
(ii) publish a correction via Judge Gibson’s Twitter account, which would include a hyperlink to the corrected version of the Conference Paper at the District Court website; and
(iii) pay Mr Barrow’s reasonable legal costs incurred prior to the making of the offer and in considering the offer.
(d) On or about 24 December 2015, Judge Gibson unilaterally performed part of the terms of the First Gibson Offer, by correcting the version of the Conference Paper which appeared on the District Court website,[5] and by publishing a correction via her Twitter account.[6] Mr Barrow concedes that this occurred.[7] Judge Gibson also, on 19 January 2016, sent a printed copy of the revised Conference Paper to each attendee at the Conference for whom she was able to obtain a postal address.[8]
[5]RJL-3.
[6]RJL-4.
[7]RJL-5.
[8]RJL-6.
(e) On 18 January 2016, Mr Barrow sent a further concerns notice (‘Second Concerns Notice’) to Judge Gibson.[9] The Second Concerns Notice was also sent to the District Court, the NSW Department of Justice, the Gazette, Inforrm, Leanne O’Donnell and Crikey, in relation to the alleged re‑publication of the Paper by each of them.
[9]RJL-5.
(f) On 10 February 2016, Judge Gibson’s solicitor sent Mr Barrow a second offer of amends (‘Second Gibson Offer’) in response to the Second Concerns Notice.[10] The offer consisted of offers to:
[10]RJL-6.
(i) write to each other recipient of the Second Concerns Notice to notify them that a revised version of the Conference Paper had been uploaded to the District Court website;
(iv) forward to each other recipient of the Second Concerns Notice a copy of the First Concerns Notice, the First Gibson Offer and the Second Gibson Offer; and
(v) pay Mr Barrow’s reasonable legal costs incurred prior to the Second Gibson Offer and in considering the Second Gibson Offer.
(g) Between 10 February 2016 and 1 March 2016, Mr Barrow sent or copied to Judge Gibson’s solicitor the following communications:
(i) on 10 February 2016, a letter in response to the Second Gibson Offer of Amends (‘Barrow Reply’),[11] a copy of which Mr Barrow also published on his personal website;[12]
[11]RJL-7.
[12]RJL-8.
(ii) on 11 February 2016, an email to Ms O’Donnell;[13]
[13]RJL-9.
(iii) on 12 February 2016, an email to Mr Ackland,[14] in which he extended the time within which Mr Ackland could make an offer of amends in response to the Second Concerns Notice to 11 March 2016;
[14]RJL-9.
(vi)on 24 February 2016, an email to Judge Gibson’s solicitor;[15] and
[15]RJL-11.
(vii) on 1 March 2016, an email to Judge Gibson’s solicitor with an attached draft Writ and Statement of Claim in relation to the publication of the Paper at the conference, and subsequent republication via Twitter, the Gazette and Inforrm.[16]
[16]RJL-10.
(h) On 11 February 2016, Mr Ackland took steps to remove the Paper from the Gazette’s content management system so that it could no longer be accessed by the Gazette’s subscribers, and notified Mr Barrow of this action.[17]
[17]RJL-9.
(i) On 4 March 2016, Mr Barrow sent a concerns notice to Ms Castle and her companies (the organisers of the Conference) (‘Castle Concerns Notice’).[18]
[18]DCB-3, First Barrow Affidavit.
(j) On 4 March 2016, Mr Ackland sent Mr Barrow an offer of amends in response to the Second Concerns Notice (‘Ackland Offer’).[19] This included an offer to publish an apology and correction in the Gazette, and to pay Mr Barrow’s reasonable legal costs incurred prior to the offer and in considering the offer.
[19]DCB-2, First Barrow Affidavit.
(k) On 11 March 2016, Ms Castle’s solicitor sent Mr Barrow an offer of amends in response to the Castle Concerns Notice (‘Castle Offer’).[20] This included an offer to publish a correction to each person who registered for the Conference session during which the Paper was delivered; an offer to pay $10,000 to Mr Barrow as compensation; and an offer to pay Mr Barrow’s reasonable legal costs incurred prior to the offer and in considering the offer.
[20]DCB-4, First Barrow Affidavit.
(l) On 18 March 2016, Mr Barrow accepted the Ackland Offer and sought payment from Mr Ackland of $3,344 in respect of his legal costs ‘reasonably incurred’, being fees said to have been charged by the law firm Harding, Stenning & Co Lawyers (‘HSCL’).[21]
[21]DCB-10, First Barrow Affidavit.
(m) Also on 18 March 2016, Mr Barrow accepted the Castle Offer and sought payment from Ms Castle of $3,344 in respect of his legal costs ‘reasonably incurred’, again being fees said to have been charged by HSCL.[22]
[22]DCB-11, First Barrow Affidavit.
(n) By 29 March 2016, the terms of the Castle Offer had been performed, including payment of $10,000 in compensation to Mr Barrow, and payment of his legal costs in the amount of $3,344.[23]
[23]First Barrow Affidavit, [18].
(o) On 19 January 2017, Mr Barrow purported to accept the Second Gibson Offer and sought payment from Judge Gibson of $5,755.67 in respect of his legal costs, being fees said to have been charged by the law firm, George Liberogiannis & Associates (‘GLA’).[24]
(p) On 3 February 2017, Mr Barrow sent three new concerns notices to Judge Gibson in relation to the alleged republication of the Conference Paper on the website with the URL 10 March 2017, Mr Barrow sent three further concerns notices to Judge Gibson’s solicitor in relation to the alleged republication of the Conference Paper on the same website (ie yumpu.com), as well as on Inforrm’s website.[26]
[24]DCB-19, Second Barrow Affidavit.
[25]RJL-13.
[26]RJL-14.
The questions in these proceedings
The questions in these proceedings can be shortly stated. These are:
(a) Whether the Second Gibson Offer was validly accepted by Mr Barrow on 19 January 2017;
(b) What are Mr Barrow’s reasonably incurred expenses in accepting the Ackland Offer, and should the Court make any orders in respect of them; and
(c) If the Second Gibson Offer was validly accepted, what are Mr Barrow’s reasonably incurred expenses in accepting the Second Gibson Offer, and should the Court make any orders in respect of them.
For the reasons set out below, I have found that the Second Gibson Offer was not validly accepted by Mr Barrow, as it was no longer open for acceptance at the time he purported to do so. Consequently, I will not make orders in respect of Mr Barrow’s costs in connection with the Second Gibson Offer. I have also determined that no orders should be made in respect of Mr Barrow’s costs in connection with the Ackland Offer. There is no evidence of what costs Mr Barrow actually incurred in that regard. Further, even if there had been such evidence, I am not persuaded that it is an appropriate exercise of my discretion to order that they be paid, in light of the close correlation of the costs of the Ackland Offer and of the Castle Offer, in circumstances where Mr Barrow has already received payment for the latter.
Applicable Law
Mr Barrow’s applications for the defendants to pay his expenses reasonably incurred by reason of accepting the offers to make amends are made pursuant to the Act. Part 3 of the Act establishes a procedure (which is not mandatory) for the resolution of civil disputes without litigation. A brief summary of the relevant provisions is set out below.
The Act establishes a regime whereby an aggrieved person can give a ‘concerns notice’ to a publisher, which is a written notice that ‘informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matters in question’ (s 14(2) of the Act).
A publisher served with a concerns notice may make an ‘offer to make amends’ to the aggrieved person, which is taken to have been made without prejudice unless it provides otherwise (s 13 of the Act).
An offer to make amends cannot be made if (a) ’28 days have elapsed since the publisher was given a concerns notice by the aggrieved person’ or (b) if ‘a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question’ (s 14(1) of the Act).
Section 15 of the Act sets out the required content of an offer to make amends. Relevantly, it must be in writing and ‘must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer’ (subsections (a) and (f)).
Section 15 of the Act further provides as follows:
‘(3)If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine –
(a)if the offer provides for a court to determine the amount of compensation payable under the offer – the amount of compensation to be paid under the offer; and
(b)any other question that arises about what must be done to carry out the terms of the offer.
(4) The powers conferred on a court by subsection (3) are exercisable –
(a)if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and
(b) except as provided in paragraph (a), by the Supreme Court.’
Section 16 of the Act deals with the withdrawal of the offer to make amends, and relevantly provides that an offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person (s 16(1) of the Act).
Section 17 of the Act deals with the effect of acceptance of an offer to make amends, in the following terms:
‘Effect of acceptance of offer to make amends
(1)If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.
(2) A court may (but need not)—
(a)order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer; and
(b)order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.
(3) The powers conferred on a court by subsection (2) are exercisable—
(a)if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and
(b) except as provided in paragraph (a), by the Supreme Court.’
Section 18 of the Act deals with the effect of a failure to accept a reasonable offer to make amends. In certain circumstances, this may be a defence to an action for defamation.
It is clear from the terms of s 17 of the Act that the power to order that the defendants pay Mr Barrow’s expenses reasonably incurred as a result of accepting offers to make amends involves an exercise of the Court’s discretion.
Consideration
Was the Second Gibson Offer validly accepted by Mr Barrow on 19 January 2017
Judge Gibson’s principal submission was that Mr Barrow had not validly accepted the Second Gibson Offer on 19 January 2017, as by that time it was no longer open for acceptance.
Judge Gibson submitted that Mr Barrow had not validly accepted the Second Gibson Offer, on three bases:
(a) Mr Barrow had, by his words and conduct between 10 February 2016 and 19 January 2017, rejected the Second Gibson Offer and had instead submitted a counter-offer, thereby extinguishing the earlier offer;
(b) Further or alternatively, Mr Barrow’s conduct in issuing six new concerns notices in February and March 2017,[27] in respect of the same Conference Paper, (‘Subsequent Concerns Notices’) is irreconcilable with his purported acceptance of the Second Gibson Offer; and
(c) Further or alternatively, by operation of law, the offer had lapsed before the time of its purported acceptance because of Mr Barrow’s failure to accept it within a reasonable time.
[27]The written outline filed on behalf of Judge Gibson refers to six new concerns notices issued during this period, however Mr Barrow’s written outline refers to 9 new concerns notices issued in that period. For the purposes of this application, nothing really turns on the difference. Only 6 of the new concerns notices were in evidence, at RJL-13 and RJL-14 (Lee Affidavit). Mr Barrow did not exhibit any of them.
Mr Barrow submitted that he had validly accepted the Second Gibson Offer. In summary, he submitted that:
(a) the Second Gibson Offer did not contain any provision requiring acceptance before a particular time. It therefore remained open for acceptance until either it was withdrawn or had been rejected;
(b) he had never said that he rejected or did not accept the Second Gibson Offer. His conduct after receipt of the Second Gibson Offer did not amount to a rejection or the putting of a counter-offer, and should be characterised as ‘commenting’ on aspects of the offer or attempts at having an exchange on the merits of his claims;
(c) the Subsequent Concerns Notices were issued in respect of re-publications of the Conference Paper that occurred after the Second Concerns Notice was issued to which the Second Gibson Offer responded, and so the making of those further complaints were not a rejection of the Second Gibson Offer; and
(d) his delay in accepting the Second Gibson Offer was reasonable, and so it could not be said that the offer had lapsed due to it not being accepted within a reasonable time.
Did Mr Barrow, by words or conduct, reject the Second Gibson Offer?
It is common ground that the Second Gibson Offer did not, on its terms, require acceptance on or before a particular date. It was therefore not an offer which could lapse in accordance with its terms.
Therefore, for Mr Barrow to succeed on this question, the Second Gibson Offer must have remained capable of acceptance as at 19 January 2017. As the case was argued, this requires that Mr Barrow’s conduct between 10 February 2016 and 19 January 2017 must not constitute a rejection or non-acceptance of the Second Gibson Offer or, if his conduct does not amount to a rejection/non-acceptance, that the offer lapsed due to it not being accepted within a reasonable time.
Both parties referred to the comments by Applegarth J in Pingel v Toowoomba Newspapers Pty Ltd (‘Pingel’).[28] The parties emphasised different aspects, but it is convenient to here set out the relevant passages in full:
[101]Third, as noted, Division 1 does not prescribe times within which an offer must remain open for acceptance, or the time within which it must be accepted or “not accepted” (the term used in s 18(1)). There appears to be no reason why an offer to make amends may not be expressed to remain open for acceptance for a limited period. Section 18(1)(b) contains as an element of the defence that “at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer”. That provision does not mandate that an offer to make amends must remain open for acceptance until trial.
[102]Leaving an offer to make amends open for acceptance for an unreasonably short period may prevent a defendant from establishing a s 18 defence because the offer will not have been reasonable in all the circumstances. A defendant may choose to leave an offer to make amends open for an undefined period, or seek to bring resolution of the matter to an early conclusion by fixing a reasonable time within which it will remain open for acceptance. In the latter case, if the offer is not accepted within the specified time then it will have been “not accepted” or “refused”, potentially engaging a s 18 defence. In the former case, an offer to make amends may be “not accepted” by words or conduct, or both. It is arguable that conduct in commencing proceedings will indicate that an offer is “not accepted”. If it does not have this effect, or if the defendant is in any doubt about the matter, then the offer may be withdrawn pursuant to s 16(1).
[103]The offer to make amends process established by Division 1 does not envisage a process of negotiation. In practice, and in circumstances in which the Division 1 process is not exclusive, offers to make amends and responses to them may form part of potentially complex without prejudice negotiations. For example, without prejudice negotiations may canvass a variety of resolutions. A letter containing an offer to make amends under Division 1 may also contain, or may prompt, communications about the strength and weaknesses of the parties’ cases. Without prejudice communications made before a notice to make amends is accepted or refused may contain assertions and counter-assertions about these matters. A potential defendant may seek to cast doubt on aspects of the potential plaintiff’s case or foreshadow substantive defences. To decide whether to accept or reject the offer, a plaintiff may be required to investigate such matters and collect evidence. In such a situation, the observations of Keane JA in Noonan v MacLennan[29] are apposite. Uncertainty as to whether the plaintiff has sufficient evidence to defeat a foreshadowed defence might make it irresponsible to commence proceedings and for both parties to incur expense in circumstances in which further investigation is required by the plaintiff in order to gather the evidence necessary to defeat the foreshadowed defence.
[104]In summary, in the absence of time limits imposed by the Act or time limits imposed by one of the parties, an offer to make amends may generate protracted negotiations. These negotiations may be brought to an end by formal acceptance or rejection of the offer, the commencement of proceedings (which may be interpreted as a rejection of the offer) or the withdrawal of the offer. Division 1 does not require parties to conclude negotiations within a specified time. However, a potential plaintiff who chooses to continue negotiations rather than to commence an action within time runs a substantial risk that the court will not be satisfied that an extension of time should be granted.
[28][2010] QCA 175 at [101]-[104] (references omitted).
[29][2010] QCA 50 at [17].
Judge Gibson’s submissions
Judge Gibson relies on a range of words and conduct by Mr Barrow as constituting a rejection of the Second Gibson Offer.
First, Judge Gibson submits that the terms of the Barrow Reply amount to a rejection of the Second Gibson Offer. On the same day as he received the Second Gibson Offer, Mr Barrow sent the Barrow Reply. The Barrow Reply was a lengthy letter addressed to Judge Gibson’s solicitor which, from the third page, then took the form of quoting verbatim from the Second Gibson Offer and interspersing it with comments or responses from Mr Barrow.
Part of the offer was that Judge Gibson would write to each of the ‘Parties’[30] to notify them of the revised version of the Conference Paper that had already been uploaded to the District Court website. In response, Mr Barrow wrote:
[30]This term is capitalised in the Second Gibson Offer, indicating it is a defined term, however there is no definition given in that letter.
As I have previously notified Judge Gibson, I do not agree to the form of the wording in the revised version of her Honour’s conference paper. To continue publishing the Paper in its current form aggravates the situation, as does notifying persons of the URL address where that inadequate version of the Paper is available for viewing on the Internet.
On 22 December 2015, I also wrote on my website:
Most inexplicable of all is that Judge Gibson quite frankly accepts her conference paper is incorrect – and yet her Honour has not taken the simple steps to immediately remove that paper from publication on the NSW District Court website until such time as an appropriate correction can hopefully be agreed.
And in my letter dated 18 January 2016 [the Second Concerns Notice], I added:
I envisage that if the successful part of the corrections to an updated conference paper can be successfully crafted by Judge Gibson and myself through a mediation [emphasis in original], then a new final link to this conference paper could be enabled. After which time we could all go peaceably our own ways.
Judge Gibson submits that this is a rejection of the first term of the Second Gibson Offer.
Judge Gibson also refers to other instances in the Barrow Reply where Mr Barrow makes statements such as ‘As I have previously notified Judge Gibson, I do not agree to this form of wording’, ‘I am disappointed to note again that Judge Gibson offers no apology’, and ‘To the extent that it is a reasonable offer at all’. These are also said to indicate rejection.
The Second Gibson Offer included offers to forward copies of Mr Barrow’s First Concerns Notice and the First Gibson Offer to the Parties. In the Barrow Reply, Mr Barrow responds by saying ‘Let’s be sure to agree on the wording of any cover letter’. Judge Gibson submits that this is akin to a counter-offer, which would stand as a rejection. Judge Gibson submits that ordinary contractual principles apply, such that a counter-offer is a rejection of the offer.[31]
[31]Loughton Contracts Plc v Dun & Bradstreet Limited [2006] EWHC 1124 (QB), [22]; Fletcher v Minister for the Environment & Heritage (1999) 73 SASR 474, [30]-[31].
Second, Judge Gibson submits that Mr Barrow’s conduct after sending the Barrow Reply constitutes a rejection of the Second Gibson Offer. These were:
(a) in his email to Leanne O’Donnell on 11 February 2016 (copied to Judge Gibson’s solicitor), Mr Barrow released Ms O’Donnell from any liability and went on to say ‘For the avoidance of doubt, I do not release Judge Judith Gibson from any liability as a joint-tortfeasor’;
(b) in his email to Mr Ackland and Yvonne Kux on 12 February 2016, Mr Barrow made a number of statements to the effect that matters were not resolved between he and Judge Gibson;
(c) in his email to Judge Gibson’s solicitor on 24 February 2016, Mr Barrow again made statements to the effect that matters were not resolved between them; and
(d) on 1 March 2016, Mr Barrow sent an email to Judge Gibson to which he attached a draft writ and statement of claim. Again, it is clear from the email that Mr Barrow continued to press his demands, including that Judge Gibson attend a mediation with him and make things ‘all right’. The draft statement of claim concerned the publication of the Conference Paper at the Conference and then by the Gibson tweet, the link on the Gazette website and on the Inforrm website. These publications were included in the Second Concerns Notice and were then the subject of the Second Gibson Offer.
Judge Gibson submits that in addition to these being further statements indicative of rejection, this is all conduct which is irreconcilable with an offer still being open.
Judge Gibson submits that it is clear, from the passage from Pingel cited above, that an offer to make amends ‘may be “not accepted” by words or conduct, or both.’[32] Mr Barrow submits that the only example given by Appelgarth J of conduct is the commencement of proceedings, and that did not happen here. In my view, Applegarth J should not be taken to be stating that commencing proceedings is the only conduct which could be capable of indicating that an offer is ‘not accepted’.
Mr Barrow’s submissions
[32][2010] QCA 175 at [102].
Mr Barrow submits that the comments from Applegarth J in Pingel, as quoted above, mean that an aggrieved person may end negotiations by formally stating ‘I reject the offer’ or ‘I do not accept the offer’. He argues that if any response short of such unambiguous statements or the commencement of litigation by an aggrieved person is able to be taken as a rejection of the offer of amends, then this would make aggrieved persons ‘overly timorous not to explore the settlement of the matter or to investigate whether there is a sufficient basis to commence proceedings’ out of a fear it will be taken as a rejection. That is said to run counter to the objects of the Act in Division 1, one of which is ‘to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.’[33]
[33]s 3(d) of the Act.
Mr Barrow contends that he did not accept, reject or formally respond to the Second Gibson Offer. He says that the comments from Applegarth J set out above in relation to how negotiations are brought to an end should be construed as requiring a formal acceptance or a formal rejection of the offer. He also says that at best, his response was informal and that there is sufficient doubt as to the intent of some of the comments in his informal response which means that they ‘cannot be held against [him] to be a rejection of the offer’. Mr Barrow did not make clear what he saw the distinction between a ‘formal’ response and an ‘informal’ response to be. In this context, I regard it is a distinction without meaning. The task before the Court is to assess Mr Barrow’s response or responses and to determine whether that amounts to a rejection of the offer.
Mr Barrow says that his conduct falls within the backwards and forwards of negotiation, as referred to by Applegarth J in Pingel.[34] He says that he was proposing alternative ways of resolving the dispute, or seeking further information, or wanting to explore the issues further in a mediation, which were all part of the negotiation process and were not a rejection of the offer. He characterises his statements in the Barrow Reply as ‘comments’ on the offer.
[34][2010] QCA 175 at [103].
Further, Mr Barrow contends that the statements in the Barrow Reply relied on by Judge Gibson as a rejection of the Second Gibson Offer are similar to statements he made in the Second Concerns Notice, which Judge Gibson’s solicitor characterised in the Second Gibson Offer as neither an acceptance, rejection or a formal response. He argues that the same characterisation ought to be applied to his comments in the Barrow Reply.
Discussion
I accept Judge Gibson’s submission that an offer to make amends can be rejected or not accepted by words or conduct, and I do not accept Mr Barrow’s submission that statements such as ‘I reject the offer’ or ‘I do not accept the offer’ must be used in order for there to be a rejection or non-acceptance.
Section 18 of the Act refers to offers which are ‘not accepted’. It does not use the term ‘rejected’. As noted by Appelgarth J in Pingel,[35] where there is no time limit for acceptance prescribed in the Act or imposed by the offeror, then any negotiations in respect of the offer may be brought to an end by withdrawal, formal acceptance or rejection of the offer.
[35][2010] QCA 175 at [104].
It is clear from the Barrow Reply that Mr Barrow did not, in that letter, accept the Second Gibson Offer. Nor did he subsequently accept it, until 19 January 2017. Mr Barrow did not contend otherwise. The issue is whether Mr Barrow’s non‑acceptance amounts to a rejection of the offer.
I regard the statements made by Mr Barrow in the Barrow Reply which I have set out in paragraph 42 above as constituting a rejection. He states that he does not agree and he goes on to repeat his demands, including that Judge Gibson attend a mediation. Viewed in their context, these are clear statements of non-acceptance that are tantamount to a rejection. He sets out what is unacceptable to him and gives reasons why, and repeats many of his demands.
This is reinforced by the other statements made in the Barrow Reply, all of which are indications of non-acceptance. I do not accept Mr Barrow’s submission that he was just commenting on the terms of the offer or proposing alternatives. Even if his conduct could be regarded as being part of a negotiation, that is not incompatible with a rejection of the offer. It is common, as part of an ongoing negotiation, for there to be offers made which are rejected. That does not mean that the negotiations are necessarily at an end, but that is not relevant to the question of whether an offer has been rejected.
Further, the correspondence between Mr Barrow and Judge Gibson cannot reasonably be characterised as negotiations. There is a demand (the Second Concerns Notice), an offer (the Second Gibson Offer), a response which does not accept the offer and repeats the demands (the Barrow Reply), and then further demands (the draft writ and statement of claim). At no point in that correspondence did Judge Gibson make further proposals or offers. An offer was made on her behalf, and then that was it, so far as correspondence on behalf of Judge Gibson was concerned.
A copy of the Barrow Reply was sent by Mr Barrow on 11 February 2016 to the recipients of the Second Concerns Notice and was uploaded on to Mr Barrow’s website. In so doing, he was clearly indicating that he did not accept the Second Gibson Offer.
The subsequent correspondence, as described in paragraph 46(a) to 46(c) above, is also indicative of non-acceptance. The terms of Mr Barrow’s email to Ms O’Donnell, in which he released her from liability and stated that he had not released Judge Gibson from liability, clearly demonstrate that he had not accepted the Second Gibson Offer. This email was part of the email chain where Mr Barrow had sent a copy of the Barrow Reply to Ms O’Donnell. The other correspondence referred to demonstrates that Mr Barrow’s dispute with Judge Gibson, as set out in the Second Concerns Notice, was still alive.
Mr Barrow submitted that although the writ and statement of claim attached to his 1 March 2016 email to Judge Gibson’s solicitor was signed and not marked as a draft, it was clear from the covering email that it was being sent as a draft. So much may be accepted. However, he then attempted to downplay its significance, by characterising it in his submissions as an attempt to seek co-operation between the parties by exchanging views on the merits of his claims at a mediation and stating that because the writ and statement of claim contained a digital signature, the Court registry would not have accepted it for filing anyway.
While this email and its attachment was not the commencement of proceedings, it was clear and unequivocal conduct that conveyed that Mr Barrow regarded the parties as still being in dispute in respect of the subject matter of the Second Concerns Notice. I regard the sending of the draft writ and statement of claim to Judge Gibson’s solicitor on 1 March 2016 as a further rejection of the Second Gibson Offer. It is clear that Mr Barrow is pressing his claims and demands. I agree with the description of this conduct given by counsel for Judge Gibson as ‘upping the ante’.
For the sake of completeness, had I not found that the Barrow Reply constituted a rejection of the offer, I would have regarded the sending of the draft writ and statement of claim as a rejection of the Second Gibson Offer. As it stands, it is further conduct consistent with rejection. I also indicate that had I not found the Barrow Reply or the sending of the draft writ and statement of claim to be rejections of the Second Gibson Offer on their own, I would have regarded the whole of Mr Barrow’s conduct in the period from the time of the Barrow Reply on 10 February to 1 March 2016 as a rejection of the offer.
Had the Second Gibson Offer lapsed before 19 January 2017 because of Mr Barrow’s failure to accept it within a reasonable time?
Judge Gibson alternatively submits that Mr Barrow’s purported acceptance of the Second Gibson Offer on 19 January 2017, some 11 months after it had been made, was not a valid acceptance as it had already lapsed as a consequence of not being accepted within a reasonable time. Judge Gibson does not say what a reasonable time was. Rather, in effect Judge Gibson submits that the purported acceptance was too late.
Counsel for Judge Gibson relied on Ballas v Theophilos (No 2)[36] as authority for the proposition that where the relevant instrument does not specify a time for the doing of an act (in that case, the exercise of an option; in this case, the acceptance of an offer), then the implication of law is that it must be done within a reasonable time. [37] What is a reasonable time will depend on all the circumstances of the particular case.[38] Mr Barrow accepted the proposition that an offer may lapse if not accepted within a reasonable time, and referred to the same case.
[36](1957) 98 CLR 193.
[37](1957) 98 CLR 193, 197 (Dixon CJ), 198 (McTiernan J), 199 (Williams J).
[38]Ballas v Theophilos (No 2) (1957) 98 CLR 193, 199 (Williams J).
Mr Barrow submitted that s 18(1)(b) of the Act ‘prescribes that for an offer of amends to be reasonable, the defendant must at any time “before the trial” be ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer.’[39] He went on to submit that notwithstanding that ‘before the trial’ does not necessarily mean all the way up until the final hearing, it must be a good way along that journey, including at least until any proceeding was commenced and the pleadings closed. He relied on several authorities in this respect.[40]
[39]Mr Barrow’s written outline [7.56].
[40]Pingel [2010] QCA 175, [101]-[102]; GeorgeBushara v Nobananbas Pty Ltd & Anor [2012] NSWSC 63, [5]-[13].
This submission is not to the point. Section 18(1) of the Act provides that if an offer to make amends is made but not accepted, then if certain preconditions are met, that is a defence to an action for defamation. One of the preconditions is s 18(1)(b), which requires that ‘at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer’. This is not a condition for what constitutes a reasonable offer. Further, it only comes into play when assessing whether the publisher is able to rely on this defence under the Act. Nor does it say anything about what ‘a reasonable time’ for acceptance of the offer is, in the context of whether an offer had lapsed due to it not being accepted within a reasonable time.
Mr Barrow also made submissions to the effect that the relevant limitation period of one year had either not expired by 19 January 2017 or that he would have grounds to obtain an extension of time if it had expired. It was submitted that the limitation period had not lapsed as some of the publications which were the subject of the Second Concerns Notice were able to be downloaded after 10 February 2016. It was also submitted that until the appeal process he had initiated in respect of his access to information about the Conference Paper being downloaded from the District Court website concluded on 14 February 2017, it was not reasonable for him to have commenced an action, which would give him grounds for making an application to extend the time in which he could bring an action. It is not necessary for me to decide the question of the expiry/extension of the limitation period. In the circumstances of this application, it likely only needs to be arguable.
However, the import of this submission was not clearly articulated by Mr Barrow. If his submission was that he had accepted the Second Gibson Offer within a reasonable time as the relevant limitation period had either not expired or would be extended, then I do not agree with that submission. I do not regard the applicable limitation period as determinative of what a reasonable time would be. Based on the evidence before me, it appears that Mr Barrow’s last communication with Judge Gibson’s solicitor before his purported acceptance of the offer was in around March 2016. In circumstances where there had been the Barrow Reply, the other correspondence in February and March 2016 clearly showing that the dispute remained ongoing, the sending of the draft writ and statement of claim, and then a 10 month period of silence, I do not think that Mr Barrow accepted the offer within a reasonable time.
Mr Barrow says that his delay in accepting the offer was reasonable, as the appeals process referred to above regarding the District Court website downloads was only completed on 14 February 2017. Mr Barrow submits that it was reasonable for him to seek out this information prior to deciding whether to accept the offer or to commence proceedings. However, this ignores the silence referred to above: for example, at no stage did he inform Judge Gibson that he was still considering the offer, or anything of that nature.
It is the lapse of time in the context of the other conduct and correspondence referred to above which I regard as leading to the conclusion that the offer had not been accepted within a reasonable time. Absent those other circumstances, the lapse of time in and of itself would likely not have been determinative of this question.
Are the Subsequent Concerns Notices irreconcilable with an acceptance of the Second Gibson Offer?
Judge Gibson submitted that Mr Barrow’s conduct in issuing the Subsequent Concerns Notices is irreconcilable with him having accepted the Second Gibson Offer, where these all concern the same Conference Paper. This submission was not developed, so it was not explained how this conduct was said to be irreconcilable.
Mr Barrow pointed out that the Subsequent Concerns Notices are in respect of publications of the Conference Paper which were not the subject of the Second Concerns Notice or the Second Gibson Offer. This was acknowledged by counsel for Judge Gibson.
Given my findings, this question does not need to be answered. Nonetheless, I do not regard this conduct as irreconcilable with the purported acceptance of the Second Gibson Offer, as it concerns different publications.
Expenses reasonably incurred – general
Ultimately, it ended up being common ground between the parties that expenses ‘incurred’ meant expenses which gave rise to a liability on Mr Barrow’s part to pay. While initially submitted by the defendants that there was no evidence of Mr Barrow having made payment of the expenses claimed, it was conceded that actual payment was not a requirement for the exercise of the Court’s discretion to order payment of ‘expenses reasonably incurred’.[41]
[41] s 17(2)(a) of the Act.
It was also common ground between the parties that the task required of the Court on these applications was not akin to a taxation of costs. Rather, the Court needs to consider, in all the circumstances, whether any order should be made for the defendants to pay Mr Barrow’s ‘expenses reasonably incurred … as a result of accepting the offer’.[42] All parties agreed that were I minded to make orders for payment of Mr Barrow’s expenses, I should determine the amount to be paid rather than referring that question to the Costs Court. Given the sums claimed by Mr Barrow, it would be contrary to the overarching obligations in the CPA, particularly those concerned with the efficient conduct of matters and keeping the costs of proceedings proportionate, to do that. Further, the issues were all argued before me and the parties led the evidence they relied on for the purpose, so it is appropriate for me to both determine whether there should be any orders for payment and, if so, what those payments should be.
[42]The Act, s17(2)(a).
The defendants submitted that the starting point is the evidence as to what expenses have in fact been incurred by Mr Barrow, being the evidence of what he is liable to pay to his solicitors (given that it was common ground he had not made actual payment) and for the Court to then determine what was reasonably incurred. Then, it is a matter for the Court as to whether to make any order for payment, given that the power to order payment is discretionary.
Mr Barrow submitted that there was evidence that he had retained lawyers,[43] of what work they had done,[44] and of what he claimed in expenses when accepting the offers. There were no invoices from his solicitors in evidence. Mr Barrow submitted that his liability to his solicitors was a matter for him, and that these proceedings were about the defendants’ liability to him. That cannot be right. The language of the Act is clear: the Court may (but need not) order the defendants to pay Mr Barrow the expenses reasonably incurred as a result of accepting the offer. It can only mean expenses Mr Barrow is liable to pay. It is Mr Barrow’s liability for expenses which is the relevant liability here.
[43]The relevant retainer agreements were in evidence. In the Ackland Proceeding, it was a costs agreement dated 16 March 2016 between Mr Barrow and HSCL (‘Ackland Retainer’), exhibit DCB-8, First Barrow Affidavit. In the Gibson Proceeding, it was a costs agreement dated 5 September 2016 between Mr Barrow and GLA (‘Gibson Retainer’), exhibit DCB-15, Second Barrow Affidavit.
[44]This is discussed further below.
Other aspects of the parties’ submissions are dealt with further below. It is convenient to deal with the Ackland Offer before dealing with the Second Gibson Offer.
Expenses reasonably incurred in accepting the Ackland Offer
When accepting the Ackland Offer by letter dated 18 March 2016 (‘Ackland Acceptance’),[45] Mr Barrow’s solicitors, HSCL, made a claim for payment of ‘the fees reasonably incurred by our client in considering the offer’. They went on to state ‘Those fees amount to $3,344.00 including GST’. In the First Barrow Affidavit, Mr Barrow stated that he had prepared a statement of ‘relevant reasonable costs’ on the Supreme Court Scale of Costs (‘Scale’), in the amount of $3,300 including GST, which he described as heavily discounted, and that this was the amount sought from Mr Ackland in this application.
[45]Exhibit DCB-10, First Barrow Affidavit.
Mr Barrow submitted that if the Court did not agree with the amount sought, then it could substitute an amount it thinks reasonable. By the time of his final written submission, he said his costs of the Ackland Offer were $8,333.55 but he was claiming $3,000 plus GST in the amount of $300 from Mr Ackland.
The details for this amount were contained in Schedule A to Mr Barrow’s written submissions. It was in a form similar to a bill of costs in taxable form and it was prepared by Mr Barrow, based on the work he estimated his solicitors had done and the time spent on that. Mr Barrow said that it had been prepared by reference to the Scale. Mr Barrow then made adjustments to it, for matters such as duplication, given that he had retained the same solicitors at the same time to advise him in respect of the Ackland Offer and the Castle Offer.
Mr Ackland’s submissions
Mr Ackland submits that the Court should decline, in the exercise of its discretion, to make any order for the payment by Mr Ackland of Mr Barrow’s expenses, on the basis that:
(a) there was no evidence before the Court that the work was actually performed, other than the letter sent by HSCL accepting the Ackland Offer. Schedule A to Mr Barrow’s submissions is a recent creation and is his construction of what he says HSCL may have done;
(b) there was obvious duplication of the work done in relation to Mr Barrow’s claims against Judge Gibson, Mr Ackland and Ms Castle, so that there would be a windfall gain if the amounts claimed in these proceedings were recoverable;
(c) the volume of material submitted by Mr Barrow to his solicitors for review was entirely disproportionate to the complexity of the matters for which their advice was sought, which was contrary to Mr Barrow’s obligations under the CPA to narrow the issues in dispute and ensure that costs remain reasonable and proportionate; and
(d) the costs incurred by Mr Barrow were not reasonable or proportionate to the complexity of the matters under consideration, having regard to his personal experience and familiarity with defamation litigation, and his clear willingness at all times to resolve his claims on the basis of the provision of apologies, retractions and corrections, without the payment of any compensation.
Mr Barrow’s submissions
In addition to the matters referred to in paragraph 78 above, Mr Barrow submits that:
(a) the retainer agreement with his solicitors is evidence of his liability to pay his solicitors’ costs;
(b) his affidavit sets out the legal work his solicitors performed, since he has deposed that his solicitors told him that they had read everything he had provided to them and what conferences they had with him and how long they lasted;
(c) the amount claimed in the Ackland Acceptance is evidence that some legal work had been done; and
(d) the amounts in Schedule A had been adjusted by him for possible duplication with the Castle Offer, which the same solicitors were advising him on at the time.
Consideration
The Ackland Retainer set out a fee estimate of $3,000 plus GST. Mr Barrow submitted that this was evidence that the legal expenses were for that amount, which was essentially the amount claimed in the Ackland Acceptance.[46] I do not accept that submission. This retainer agreement sets out an estimate of the likely fees and has clear terms which states that it is ‘an indication only and is NOT BINDING’on HSCL, [47] and that a revised estimate would be provided if the scope or nature of the work to be performed changed. It is not evidence of what expenses Mr Barrow has incurred by reason of his engagement of HSCL in respect of the Ackland Offer.
[46]The Ackland Acceptance also included a $44 disbursement charge.
[47]Emphasis in the original.
Nor do I accept that the Ackland Acceptance is evidence of the fees incurred – looking at this letter as a whole and in context, it is clear that this is nothing more than the amount claimed from Mr Ackland.
The Ackland Retainer contains a section in respect of how HSCL will issue invoices/bills to Mr Barrow and states that HSCL’s bill is payable when Mr Barrow receives it. Mr Barrow did not provide any evidence in respect of a bill or invoice from HSCL in respect of the Ackland Offer, such as a copy of that bill/invoice or a statement in his affidavit that he had received one. The solicitor’s file has not been produced and the solicitor has not given evidence.
Mr Barrow did not retain solicitors in respect of the Conference Paper or its publication until 13 March 2016. On that date, he sent an email to Bill Kontos of HSCL,[48] in which he stated that he wished to engage HSCL to provide two opinions to him on the reasonableness of the Ackland Offer and the Castle Offer. He was not seeking to engage HSCL in respect of the matter generally. Mr Barrow indicated in that email that his priorities were to not lose the opportunity, due to delay, of receiving the $10,000 in compensation offered by Ms Castle and to limit the legal costs to those that the offering parties (i.e. Mr Ackland and Ms Castle) were willing to pay.
[48]Exhibit DCB-05, First Barrow Affidavit.
Mr Barrow put in evidence a copy of the retainer agreement between him and HSCL dated 16 March 2016 (‘Castle Retainer’).[49] The Castle Retainer was in the same terms as the Ackland Retainer, the scope of work was virtually identical (except for identifying a different offer of amends to be advised upon) and the fee estimate was the same. Mr Barrow did not have separate conferences with HSCL regarding the Ackland Offer and the Castle Offer. He deposed that both offers were discussed at the two conferences he had with HSCL on 15 and 17 March 2016.[50] There is no evidence of any amount charged to Mr Barrow by HSCL pursuant to the Castle Retainer. The letter from HSCL dated 18 March 2017 to Ms Castle’s solicitors accepting the Castle Offer was in relevantly similar terms to the Ackland Acceptance. [51]
[49]Exhibit DCB-09, First Barrow Affidavit.
[50]First Barrow Affidavit, [10], [14].
[51]Exhibit DCB-11, First Barrow Affidavit.
While it would be open to the Court to determine an amount to be paid by Mr Ackland for fees reasonably incurred by reason of Mr Barrow accepting the Ackland Offer, I do not consider it appropriate to do so in the circumstances of this case, for the following reasons:
(a) as set out above, there is no evidence of the amount for which Mr Barrow is liable to his solicitors;
(b) given the limited scope of the engagement of HSCL regarding the Ackland Offer and the Castle Offer, and given his own expertise and experience in the area, it was not necessary for Mr Barrow to instruct his solicitors with the voluminous materials that he gave to them. Mr Barrow deposes to giving Mr Kontos a USB flash drive containing documents. There were some 125 documents comprising some 535 pages on that flash drive.[52] It is difficult to see how HSCL, if properly instructed, would have required any documents for review other than the Conference Paper and the correspondence between Mr Ackland and Mr Barrow, Ms Castle and Mr Barrow, and possibly a limited amount of other related correspondence. Accordingly, any legal fees reasonably incurred would be very modest indeed, for the reasons set out in paragraphs 92 and 93 below; and
(c) while appropriate adjustments may be able to be made by the Court to deal with the possibility of duplication and ensuring there is no ‘windfall gain’, I do not consider it appropriate to do so here. There is no evidence of the actual charges, and so it is not possible to be certain whether Mr Barrow’s reasonable expenses have already been met by the payment he received from Ms Castle for expenses. However, in my view, for the reasons set out in paragraphs 92 to 95 below, it is quite likely that they have been.
[52]A list of documents contained on the flash drive is at exhibit DCB-06 and a copy of the documents is at exhibit DCB-07, First Barrow Affidavit.
I do not accept the submission that as Mr Barrow is a qualified solicitor experienced in defamation law it was not reasonable for him to retain solicitors to advise him on the Ackland Offer. It was reasonable for him to obtain independent advice in respect of the offer, even though at the time of retaining solicitors his focus was on accepting the Castle Offer and likely also the Ackland Offer.[53]
[53]Exhibit DCB-05, First Barrow Affidavit.
In my view, if it were necessary for me to calculate the amount of costs reasonably incurred by Mr Barrow in respect of the Ackland Offer, I would calculate it by estimating the time reasonably spent by HSCL in respect of the Ackland Offer and Castle Offer, and then halving it. Given the manner in which HSCL was retained in respect of both offers and the way in which the work was performed and advice given, this is the most sensible approach to take. It is also effectively what Mr Barrow did, however he included far more time in that calculation.
I would apply an hourly rate for the solicitor’s time of $386, which was the rate contained in the Scale for the 2016 calendar year and which is the rate usually allowed on a taxation. I would regard the following as reasonable:
(a) one solicitor spending three hours reviewing a much smaller set of materials provided by Mr Barrow and considering the legal issues - $1,158;
(b) one solicitor attending two conferences with Mr Barrow (one to obtain initial instructions and the second to advise) of no more than 2.5 hours in total (which is the amount of time Mr Barrow said he had spent in conferences with HSCL) - $965; and
(c) $207.90 to prepare the Ackland Acceptance (this was the amount claimed in Schedule A).
This gives the amount of $2,123 in respect of the items described in paragraphs (a) and (b) above, which I would then halve, giving an amount of $1,061.50. Adding in the item referred to in paragraph (c) above, gives a total of $1,269.40 in respect of Mr Barrow’s costs in connection with the Ackland Offer. On this basis, the reasonable costs in connection with the Castle Offer were likely to be around the same amount.
Ms Castle has already paid $3,444 for Mr Barrow’s expenses. Therefore, I do not consider it appropriate that an order be made that Mr Ackland pay Mr Barrow’s expenses.
Expenses reasonably incurred in accepting the Second Gibson Offer
Given my findings that Mr Barrow did not validly accept the Second Gibson Offer, it is not necessary for me to consider what expenses were reasonably incurred by Mr Barrow in accepting the Second Gibson Offer or make any orders in that regard. However, given that the question was argued by the parties, I will address that here.
Paragraphs 75 to 78 above also apply to the consideration of this question.
Mr Barrow’s solicitors in respect of the Second Gibson Offer, GLA, sent a letter dated 19 January 2017 to Dr Lee on behalf of Mr Barrow, purporting to accept the Second Gibson Offer (‘Gibson Acceptance’). That letter stated that enclosed was an ‘itemized bill of costs amounting to $5,755.67 for providing our client advices in this matter for your clients [sic] immediate attention’ and made a demand for payment within 7 days. The amount claimed included disbursements of $67 and did not include GST.
As with the costs in respect of the Ackland Offer, Mr Barrow submitted that if the Court did not agree with the amount sought, then it could substitute an amount it thinks reasonable. By the time of his final written submission, he said his costs of the Second Gibson Offer were $5,228.93 (inclusive of $67 in disbursements and not including GST).
The details for this amount were contained in Schedule B to Mr Barrow’s written submissions. This was in the same form as the document enclosed with the Gibson Acceptance, with some minor adjustments to some of the amounts. Mr Barrow describes both amounts as heavily discounted, on the basis that printing costs were claimed at $0.20 per page rather than the Scale amount of $2.60 per page, and reducing the perusing and scanning rate to 1/3 (reduced again to 25 percent in Schedule B).
Judge Gibson’s submissions
In addition to the submissions summarised in paragraph 83 above, Judge Gibson submits that:
(a) There was no reasonable justification for using two firms of solicitors (ie HSCL and GLA) in respect of what was a single dispute; and
(b) The fees claimed include amounts charged for legal work after the making of the Second Gibson Offer that were unrelated to Mr Barrow’s purported acceptance of it.
Mr Barrow’s submissions
Mr Barrow made relevantly the same submissions in respect of the costs of the Second Gibson Offer as he made in respect of the Ackland Offer which are summarised in paragraph 84(a) to 84(c) above.
He also submitted that his reduction of the perusing rate to 25 per cent sufficiently deals with any duplication on account of the Ackland Offer and the Castle Offer in the legal work done in respect of the Second Gibson Offer.
Mr Barrow submits that engaging a different law firm in September 2016 was justified on the following bases:
(a) his engagement with HSCL had ended in early April 2016;
(b) he was embarrassed in subsequently dealing with HSCL as a result of Mr Ackland refusing to pay the costs claimed in respect of that firm’s work;
(c) he had prepared extensive notes (73 pages) in October 2016 for use in his discussions in October 2016 with Mr Liberogiannis, which he had subsequently revised and used again in discussions with Mr Liberogiannis in January 2017;
(d) Mr Liberogiannis had been an instructing solicitor in a number of recent defamation matters.
Consideration
As noted above, Mr Barrow’s engagement of HSCL did not encompass any claims he may have had against Judge Gibson or any consideration of the Second Gibson Offer.
In September 2016, Mr Barrow took steps to engage solicitors in respect of the Second Gibson Offer. He had an initial conference with Mr Liberogiannis on 2 September 2016, which he says was for the purpose of him engaging GLA to provide legal advice to him in respect of considering acceptance of the Second Gibson Offer. Mr Barrow sent an email to Mr Liberogiannis on 5 September 2016, attaching a copy of the signed Gibson Retainer.
For the purposes of considering this question, it is necessary to go into some detail about the Gibson Retainer. It does not identify the scope or nature of the work to be done pursuant to the retainer. In the covering email sent by Mr Barrow to Mr Liberogiannis on 5 September 2016 attaching the signed Gibson Retainer, Mr Barrow referred to the engagement being in respect of providing an opinion on a defamation offer of amends. However, a closer reading of the Gibson Retainer suggests that the scope of the engagement was much wider, based on what was defined as a ‘successful outcome’ and the amount of the estimate of legal fees and costs.
On its terms, the Gibson Retainer is stated to be a conditional costs agreement. It states that Mr Barrow was liable to pay legal fees ‘ONLY if there is a successful outcome in this matter’ (emphasis in original) and provided that Mr Barrow retained GLA until the conclusion of the matter. Successful outcome is then defined to be any of the following:
(a) ‘acceptance by you of an offer of amends made pursuant to Part 3’ of the Act;
(b) ‘an offer of settlement, other than one:
(i) limited to relief from an adverse party’s potential claims for costs; or
(ii) requiring nett payment by you to the offeror,
which we recommend as acceptable and which in our reasonable opinion represents an appropriate conclusion or resolution of the matter’;
(c) ‘settlement or resolution of the matter in accordance with your instructions’; or
(d) ‘following a verdict or final judgment in your favour by a Court’.
Under the Gibson Retainer, Mr Barrow was required to pay all disbursements and any adverse costs orders, regardless of the outcome.
Mr Barrow deposes to the purpose of his engagement of GLA as being for ‘legal advice with respect to me considering acceptance’ of the Second Gibson Offer,[54] and that the Gibson Retainer was entered into for that purpose.[55] It is difficult to see how any of the possible successful outcomes as defined in the Gibson Retainer other than the first one identified[56] would be relevant if the purpose of the retainer was solely in respect of the Second Gibson Offer. Judge Gibson submits, and I accept, that a conditional costs agreement for a legal opinion on whether to accept an offer is highly unusual.
[54]Second Barrow Affidavit, [24].
[55]Second Barrow Affidavit, [25].
[56]That is, the acceptance of the Second Gibson Offer, as described in (a) of the preceding paragraph.
Without identifying the scope of the work to be done, the Gibson Retainer provides as estimate of $27,800 (including GST), made up of $16,500 in legal fees, $11,000 in counsel’s fees and other disbursements of $330.
It is even more difficult to see how the purpose of the engagement as deposed to by Mr Barrow could possibly have resulted in that level of estimated legal fees and expenses.
Even more incongruous in this context is that the Gibson Retainer provides for an uplift fee of 25 percent of the legal fees, payable if there is a successful outcome. The uplift fee was estimated at $4,125, being 25 percent of the $16,500 estimate referred to above.
It is therefore reasonable to infer that GLA were engaged, via the Gibson Retainer, in respect of a scope of work that was much greater than simply advice on whether to accept the Second Gibson Offer.
As with the Ackland Offer, Mr Barrow did not provide any evidence of the amount which he was liable to pay GLA. The attachment to the Gibson Acceptance and Schedule B to Mr Barrow’s written submissions are not evidence of this.
I do not find it persuasive, as a reason for Mr Barrow engaging a second set of solicitors, that he was ‘embarrassed’ due to HSCL not having been paid by Mr Ackland. However, I do not consider it unreasonable for him to have engaged GLA in respect of the Second Gibson Offer. Therefore, I would not regard this as a factor disentitling Mr Barrow from the costs, if I were otherwise minded to order them. There is obviously likely to be duplication, in that HSCL would not have had to review documents or consider issues that they had already done earlier, however that could be dealt with by discounting the amount of costs to be ordered.
Mr Barrow instructed GLA with a large volume of material. He deposes that at the conference on 18 October 2016, he provided Mr Liberogiannis with a USB flash drive which contained electronic documents running to 1,279 pages, a list of documents, a list of same or similar publications to the Conference Paper which he said were defamatory of him and 73 pages of notes he had prepared for Mr Liberogiannis. He also deposes that on 19 January 2017, he gave Mr Liberogiannis a revised set of notes (again, 73 pages) plus other documents.[57] Those other documents amount to 282 pages.[58] Again, it is difficult to see how Mr Liberogiannis, properly instructed, would have required this volume of documents in order to advise Mr Barrow on whether to accept the Second Gibson Offer.
[57]Second Barrow Affidavit, [27], [29].
[58]These are exhibited at DCB-18, Second Barrow Affidavit. By my calculation, there are 282 pages plus Mr Barrow’s 73 pages of notes.
There is no direct evidence of the work done by GLA in the form of evidence from Mr Liberogiannis or one of his associates or an invoice containing detailed narrations. There is only the attachment to the Gibson Acceptance. However, Mr Barrow has given some evidence in this regard. He states that he attended one initial conference with Mr Liberogiannis on 2 September 2016 (which he does not claim costs for), a one hour conference with Mr Liberogiannis on each of 18 October 2016 and 9 January 2017, and a conference with Mr Liberogiannis on 19 January 2017 which went for one and a half hours. He states that the subject of all of these conferences was the Second Gibson Offer. Mr Barrow also states that at the conference on 19 January 2017, Mr Liberogiannis told him that he had read all of the documents he had been sent on 18 January 2017. The costs claimed by Mr Barrow concern the matters identified in this paragraph, along with drafting and sending the Gibson Acceptance. Except for printing costs of $71.40, the fees for drafting and sending the letter, and the fees for 3.5 hours of conferences, most of the costs claimed are fees for perusing ‘1363 folios’. This is said to amount to $17,310.10 and Mr Barrow claims 25 percent of this, being $4,327.53. Even with that level of discount applied, to have around 83 percent of the claimed amount being for perusal of documents seems inordinately high.
If it were necessary for me to calculate the costs reasonably incurred by Mr Barrow in respect of the Second Gibson Offer, I would calculate them in the amount of $3,042.50. This is comprised of:
(a) 1 hour for the conference on 18 October 2016 - $386;[59]
[59]Using the hourly rate for solicitors provided for in the Scale for the 2016 calendar year, as set out above.
(b) 2.5 hours at $393 per hour for the conferences on 9 and 19 January 2017 - $982.50;[60]
(c) the claimed amount of $102 for drafting and sending the Gibson Acceptance; and
(d) 4 hours of reviewing materials prior to the conferences at $393 per hour - $1,572. I consider that this time allocation is reasonable. This takes into account the likelihood that more material needed to be reviewed in respect of the Gibson Offer than in respect of the other two offers, as well as an appropriate reduction for duplication as a consequence of two sets of solicitors being used.
[60]This is the hourly rate for solicitors provided for in the Scale for the 2017 calendar year.
Conclusion
Therefore, there will be orders made dismissing both proceedings. I will hear the parties as to the appropriate form of orders and as to costs.
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