Cables v Winchester (No 2) - [2019] VSC 78

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 04668

MAREE ELLEN CABLES	Plaintiff
v
MATTHEW WINCHESTER	Defendant

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JUDICIAL REGISTRAR:	Judicial Registrar Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2018
DATE OF JUDGMENT:	27 February 2019
CASE MAY BE CITED AS:	Cables v Winchester (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 78

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COSTS – Whether the defendant unreasonably failed to make a settlement offer - Whether the plaintiff is entitled to an indemnity costs order - Defamation Act 2005 (Vic) - Cables v Winchester [2018] VSC 392 - Hockey v Fairfax Media Publications Pty Ltd (No. 2) [2015] FCA 750 - Davis v Nationwide News Pty Ltd [2008] NSWSC 946.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Castelan	Litton Legal
The Defendant in person

JUDICIAL REGISTRAR:

Background

Ms Cables was awarded damages in the amount of $200,000 in her defamation claim against Mr Winchester.[1]
[1] Cables v Winchester [2018] VSC 392.

Mr Winchester did not file an appearance or defence and Ms Cables obtained judgment in default of appearance.

Ms Cables now makes application for an order that Mr Winchester pay her costs on an indemnity basis.

Statutory regime

Section 40 of the Defamation Act 2005 (Vic) (‘the Act’) states:

(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 sub-section (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-
(a)“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.

Application of s 40 of the Act to this proceeding

In Hockey v Fairfax Media Publications Phj Ltd (No. 2), White J said:

The effect of subs (1) is that, when determining both where the burden of costs should lie and the scale on which they be paid, the Court may have regard…

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 Cables v Winchester (No 2)

Details

AGLC: Cables v Winchester (No 2) [2019] VSC 78
Case: [2019] VSC 78
Decision Date: 27 February 2019

CaseChat Overview and Summary

Cables v Winchester (No 2) involved the plaintiff, Mr Cables, who sought to recover costs under the Defamation Act 2005 (Vic) for the defendant's unreasonable failure to make a settlement offer. The case was heard in the Supreme Court of Victoria. The plaintiff sought an indemnity costs order as a result of the defendant's refusal to make a settlement offer prior to the litigation process, which the plaintiff argued was unreasonable and without merit. The court was required to determine whether the defendant's failure to make a settlement offer was unreasonable and whether the plaintiff was entitled to an indemnity costs order under the Defamation Act 2005 (Vic).

The court examined the relevant provisions of the Defamation Act 2005 (Vic) and considered relevant case law, including Hockey v Fairfax Media Publications Pty Ltd (No. 2) and Davis v Nationwide News Pty Ltd. The court found that the defendant's failure to make a settlement offer was unreasonable as it was without merit and the plaintiff had established a strong case for defamation. The court also found that the plaintiff was entitled to an indemnity costs order as the defendant's failure to make a settlement offer was unreasonable and without merit. The court held that the defendant's conduct was an abuse of the court process and that the plaintiff was entitled to recover costs on an indemnity basis.

The Supreme Court of Victoria ordered that the defendant pay the plaintiff's costs on an indemnity basis. The court emphasised the importance of parties considering settlement offers and the consequences of unreasonably refusing to make a settlement offer. The court's decision in Cables v Winchester (No 2) reinforces the principle that parties should not unreasonably refuse to make a settlement offer and that the court may grant indemnity costs where such refusal is found to be unreasonable.

Orders