BeautyFULL CMC Pty Ltd v Hayes (No 2)

[2021] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:

BeautyFULL CMC Pty Ltd v Hayes (No 2) [2021] QDC 164

PARTIES:

BEAUTYFULL CMC PTY LTD

ACN 155 002 627

(first plaintiff)

and
MARK SCRUTON SOWDEN
(second plaintiff)
and
KATE SCRUTON BELCHER
(third plaintiff)
and
MARGARET JOANNE SCRUTON

(fourth plaintiff)

v

CLAIRE ELIZABETH HAYES

(defendant)

FILE NO:

2222/2020

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

3 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Reid DCJ

ORDER:

The defendant pay each plaintiff’s costs of and incidental to the proceedings to be assessed on the indemnity basis

CATCHWORDS:

COSTS – where matter proceeded to trial – where plaintiffs successful at trial – where defendant ordered to pay plaintiffs damages at trial – where defendant unreasonably failed to make a settlement offer – where costs awarded on the indemnity basis

LEGISLATION:

Defamation Act, s 40.

COUNSEL:

APJ Collins for all Plaintiffs

Self-represented - Defendant

SOLICITORS:

McInnes Wilson for all Plaintiffs

1. In this matter I previously gave judgment for each of the four plaintiffs against the defendant in an action for defamation.  They received damages, inclusive of interest, as follows:

   First Plaintiff     $20,660.00

   Second Plaintiff  $20,660.00

   Third Plaintiff     $12,912.00

   Fourth Plaintiff   $30,990.00

2. I also ordered that the defendant be restrained from publishing on any social media platform, any publication defaming any of the plaintiffs.

3. Correspondence between the parties after publication of the defamatory comments the subject of the claims is set out in an affidavit of the plaintiffs’ solicitor, Emily Burns, of 10 March 2021.  Essentially, after the first publication referred to in my primary judgment, a Concerns notice was sent to the defendant on 2 April 2020.  That letter indicated;

   “Our client does not see that engaging in litigation against you is in either party’s interests.  In an effort to avoid litigation (and the obvious time and expense that both parties would be put to) we propose that you agree to the following:

   (a)     You agree to write a post/story on your Instagram account retracting the statements made in the story;

   (b)     The terms of the retraction in (a) are to be agreed; and

   (c)     You undertake to our client that you will not make any further false and/or harmful allegations of the kind that are the subject of the story or otherwise (whether that be online or to any member of the public).

4. In that notice no demand was made for payment of costs.

5. On publication of the second, third and fourth publications referred to in my judgment, the solicitors again sent a Concerns Notice to the defendant of 15 May 2020.  In that notice, the solicitors said:

   “We are instructed to request that you:

   (a)     Fully and unconditionally detract the offending allegations in the 10 May story.  To this end, we require you to provide, as soon as possible, a draft retraction and apology for publication on your Instagram account for our client’s consideration;

   (b)     Apologise to our clients for the defamatory imputations;

   (c)     Undertake to not repeat the defamatory imputations made against our client in the 10 May story; and

   (d)     Undertake to reimburse our clients for the legal costs our clients have incurred in remedy of the defamatory imputations contained in the 10 May story.  We estimate those costs will be in approximately $3,000.00 (plus GST).”

6. In subsequent correspondence the plaintiff’s solicitors sought to have the defendant execute a written apology in respect of all four publications, acknowledging that each was completely false and offering sincere and unconditional apology.  The defendant responded saying that she would not be signing the apology letter because inter alia: “I do not agree nor believe what I published was ‘false’.”  On 27 October 2020 the defendant emailed the plaintiffs’ solicitor “requesting your client cease any further litigation”.  She asserted that she had no assets, no income and was in receipt of social security.  She advised that she would be unable to pay any damages and would have to “declare bankruptcy”. 

7. It is clear from my judgment that the defendant’s conduct both in relation to the publication of the defamatory comments about the plaintiffs and more particularly in relation to her conduct of the trial, was extremely poor.  She refused to acknowledge her unjustified and abusive comments were inappropriate and hurtful of each of the plaintiffs.  At no time did she make any apology or offer to settle.  She made no real attempt to try to make amends for her actions in publishing the defamatory comments.  At the trial she refused to acknowledge her wrongdoing but did not herself give evidence to try to justify her position.

8. She may perhaps have believed her own impecuniosity meant she was not in a position to make a monetary offer to settle but her response the plaintiffs’ solicitors notices of concern, her denial of factual matters in dispute without any proper basis for such denial and in circumstances where she did not give evidence at the trial, and her pleading in relation to various of the publications, of justification and truth, cause me to conclude that her conduct is such that I should make an order that she pay the plaintiff’s costs of the proceedings on an indemnity basis.

9. In so concluding, I am mindful of the provisions of s 40 of the Defamation Act 2005 (Qld) which provide so far as relevant:

   “40  Costs in defamation proceedings

   (1)   In awarding costs in defamation proceedings, the court may have regard to—

   (a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and

   (b)any other matters that the court considers relevant.

   (2)   Without limiting subsection (1), a court must (unless the interests of justice require otherwise) —

   (a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or

   (b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

   (3)   In this section—

   settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.”

10. Section 40(2)(a) is, I conclude, engaged because the defendant has unreasonably failed to make a settlement offer, including an offer to make amends. Instead, she defended the matter relying, inter alia, on pleas of justification and truth. 

11. There are, in my view, no interests of justice which would require any other order to be made.  In this regard, I accept the submission of counsel for the plaintiffs in [17] of his written submissions.  It is in my view unnecessary to set them out.  They largely reflect the contents of this judgment.

12. I will therefore order that each of the plaintiffs’ costs of and incidental to the action, assessed under an indemnity basis, be paid by the defendant.