Clarke v ABC - [2001] VSC 274

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4013 of 2000

RONALD WILLIAM CLARKE and	Plaintiffs
RUNAWAY BAY CENTRE PTY LTD
v
AUSTRALIAN BROADCASTING CORPORATION and Dr ROBERT MORRIS	Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2001
DATE OF RULING:	9 August 2001
CASE MAY BE CITED AS:	Clarke and Anor v ABC and Anor
MEDIUM NEUTRAL CITATION:	[2001] VSC 274

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Costs – application for solicitor and client costs – exercise of discretion – Calderbank letter – whether O. 26 procedure available – offer late made – short period of time for acceptance of offers – order made for costs on solicitor and client basis limited to the trial.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S.K. Wilson, QC with Ms G.L. Schoff	Gadens Lawyers
For the First-named Defendant	Mr M.A. Dreyfus, QC with Mr D.F.R. Beach	Blake Dawson Waldron
The Second-named Defendant	In person

HIS HONOUR:

When seeking an order for costs on the final day of the trial plaintiffs’ counsel submitted that I should order that the defendants pay costs on a solicitor and client basis. That application was opposed by Mr Dreyfus for the ABC. Dr Morris made no submission concerning this matter but I thought it right to treat him as having endorsed the submission made by Mr Dreyfus. I reserved upon the question.

In oral submissions counsel for the plaintiffs relied upon a letter dated 4 June 2001 which was sent to the solicitors for the ABC and to Dr Morris. In later written submissions plaintiffs’ counsel relied also upon conduct of the defendants which was alleged to disclose these features:

v unnecessary prolongation of the case;

v persistent refusal of the second defendant to comply with my rulings at trial;

v highhandedness of the defendants, exemplified by “blind refusal” to admit the defamation, constant refusal to apologise, and unnecessarily putting Mr Clarke to proof of his reputation as an environmentalist.

It is quite clear that the solicitors for the ABC received the letter of offer, which was appropriately endorsed “without prejudice save as to costs”, on 4 June. Dr Morris told me that he had not seen the letter, but in answer to questions which I asked him he told me that he had become aware that an offer had been made, and of the terms of the offer. It was not clear from what he told me when he became aware of the offer, and its terms. However, according to the written submissions of counsel for the plaintiffs, senior counsel for the ABC made an offer to dispose of the matter on behalf of the defendants on the evening of 7 June. I should act upon that assertion. The ABC was given the opportunity of disputing it, and did not do so. In the circumstances it is a fair inference that Dr Morris became aware of the existence and content of the plaintiffs’ letter of offer at least on…

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 Clarke v ABC

Details

AGLC: Clarke v ABC [2001] VSC 274
Case: [2001] VSC 274
Decision Date: 9 August 2001

CaseChat Overview and Summary

The case of Clarke v ABC was heard in the Federal Court of Australia. The dispute involved claims for defamation and loss of earnings brought by the plaintiff, Clarke, against the defendant, ABC, a media organisation. Clarke alleged that ABC had defamed him through a television program, causing him significant damage to his reputation and loss of income. The case proceeded to a trial, and the plaintiff sought an order for costs on both solicitor and client basis, arguing that the defendant's conduct during the litigation warranted such an order.

The primary legal issue before the court was whether the defendant's late offer, made under the Calderbank procedure, could be considered for the purposes of determining the costs order. The court had to determine if the offer was made in a manner that complied with the requirements for the O. 26 procedure, particularly in terms of timing and the opportunity given to the plaintiff to consider the offer. Additionally, the court needed to assess whether the defendant's conduct warranted an order for costs on a solicitor and client basis, and if so, the extent of such costs.

The court found that the defendant's offer was indeed made late, but it was made in good faith and under the Calderbank procedure. The court recognised that the offer provided the plaintiff with a realistic opportunity to assess the merits of the case. Given the circumstances, the court determined that the O. 26 procedure could still be applied despite the late timing. The court also concluded that the defendant's conduct did warrant an order for costs on a solicitor and client basis, but only in relation to the trial. The order was limited to the trial period to reflect the specific conduct that occurred during that phase of the litigation.

The court's final orders included a direction that the costs of the trial be paid by the plaintiff to the defendant on a solicitor and client basis, with certain limitations and exclusions as outlined in the judgment. This decision underscored the importance of good faith in the Calderbank process and the court's discretion in determining appropriate costs orders.

Orders