Bechara v Bonacorso (No. 5)

Case [2010] NSWDC 260
CITATION: Bechara v Bonacorso (No. 5) [2010] NSWDC 260
HEARING DATE(S): 10 November 2010
EX TEMPORE JUDGMENT DATE: 10 November 2010
JURISDICTION: Civil
JUDGMENT OF: Gibson DCJ
DECISION: (1) Vary order 2 of my orders of 15 October 2010 to provide that the plaintiff pay the defendant’s costs of these proceedings on a party and party basis until 29 August 2009, and on an indemnity basis thereafter;
(2) The plaintiff pay the defendant’s costs of this motion on an indemnity basis.
CATCHWORDS: Tort - defamation - costs - plaintiff unsuccessful in defamation proceedings - defendant seeks indemnity costs for offer of compromise made before the matter was set down for trial - consideration of legislative provisions designed to promote the making of offers in defamation proceedings
LEGISLATION CITED: Defamation Act 1974 (NSW), s 48A
Defamation Act 2005 (NSW), s 40
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A
CASES CITED: Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, 24 April 1997)
Bechara v Bonacorso (No. 4) [2010] NSWDC 234
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Gaskin v Ollerenshaw [2010] NSWSC 874
Habib v Nationwide News Pty Ltd (No. 2) [2010] NSWCA 291
Hennessy v Lynch (No. 4) [2008] NSWDC 15
Larach v Urriola (No 2) [2009] NSWDC 142
Leichhardt Municipal Council v Green [2004] NSWCA 341
Melchior v Sydney Adventist Hospital [2009] NSWSC 65
National Auto Glass Supplies (Aust) Pty Ltd v Nielsen & Moller Auto Glass (NSW) Pty Ltd (No.9) [2007] FCA 1826
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Skalkos v Assaf [2002] NSWCA 14
Skalkos v T S Recoveries Pty Ltd [2004] NSWCA 281
TEXTS CITED: The Honourable Justice M H McHugh AC, “When is a defamation actionable?”, Aspects of the Law of Defamation in NSW, Law Society of NSW, 1990
PARTIES: Plaintiff: Antoine Bechara
Defendant: Paul Bonacorso
FILE NUMBER(S): 5084 of 2008
COUNSEL: Plaintiff: G Adelstein, solicitor
Defendant: Ms K Rees
SOLICITORS: Plaintiff: Diamond Conway
Defendant: Puleo Lawyers

Judgment


[1] These are proceedings for defamation which were listed for hearing for five days commencing on 17 May 2010. After ten days of hearing and extensive submissions to 24 August 2010, I handed down my decision in Bechara v Bonacorso (No. 4) [2010] NSWDC 234 and made orders as follows:


    (1) Judgment for the defendant for each of the first, second and third matters complained of.

    (2) Plaintiff pay defendant’s costs.

    (3) Liberty to restore concerning costs.

    (4) Exhibits retained for 28 days.

[2] The defendant now brings an application by notice of motion pursuant to s 40 Defamation Act 2005 (NSW) and r 42.15A Uniform Civil Procedure Rules 2005 (NSW) (hereafter “UCPR”), that the plaintiff pay the defendant’s costs of the proceedings:


    (a) on a party and party basis until 29 August 2009, and

    (b) on an indemnity basis thereafter.

[3] The principal basis for the application is that on 28 August 2009 (after the pleadings were closed, and before the matter…

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AGLC
Bechara v Bonacorso (No. 5) [2010] NSWDC 260
Case
[2010] NSWDC 260
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bechara v Bonacorso (No. 5) involved a dispute over defamation. The plaintiff, Bechara, had sued the defendant, Bonacorso, for defamation, but was ultimately unsuccessful in their proceedings. Bonacorso, seeking to recover costs incurred during the litigation, applied for indemnity costs related to an offer of compromise made before the matter was set down for trial. The court had to consider the legislative provisions designed to encourage the making of offers in defamation proceedings.

The central legal issue before the court was whether Bonacorso was entitled to indemnity costs for the offer of compromise. The court examined the provisions of the Federal Court of Australia Act and the Uniform Civil Procedure Rules, which are intended to promote the resolution of disputes through offers of compromise, particularly in defamation cases. The court had to balance the legislative intent to encourage such offers with the principle that indemnity costs are not to be awarded lightly.

The court held that Bonacorso was entitled to indemnity costs for the offer of compromise. It found that the offer was made in accordance with the legislative framework designed to encourage such offers, and that Bechara's refusal of the offer was unreasonable. The court acknowledged the importance of promoting offers of compromise in defamation cases, and determined that the legislative intent supported awarding indemnity costs in this instance. The court varied the previous order to reflect that Bechara must pay Bonacorso's costs on an indemnity basis from the date of the offer.

The final orders of the court required Bechara to pay Bonacorso's costs of the proceedings on a party and party basis until 29 August 2009, and on an indemnity basis thereafter. Additionally, Bechara was ordered to pay Bonacorso's costs of the motion on an indemnity basis.

Orders

Orders of the court

(1) Vary order 2 of my orders of 15 October 2010 to provide that the plaintiff pay the defendant’s costs of these proceedings on a party and party basis until 29 August 2009, and on an indemnity basis thereafter;

(2) The plaintiff pay the defendant’s costs of this motion on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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