Daunt Watney v Kencian - [2018] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Daunt Watney v Kencian & Anor [2018] QDC 135

PARTIES:

CHRISTOPHER DAUNT WATNEY

(plaintiff)

v

JANET KENCIAN

(first defendant)

and

ANTHONY WOOLLEY

(second defendant)

FILE NO/S:

CLAIM NO: 52 of 2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Cairns

DELIVERED ON:

24 July 2018

DELIVERED AT:

Cairns

HEARING DATE:

25-29 July 2016, 1-3 August 2016, 26-29 March 2018, 3-5 April 2018.

JUDGE:

Morzone QC DCJ

ORDER:

1. The plaintiff will pay the defendants’ costs of and incidental to the proceeding, excluding the costs of the trial from 25 July 2016 to 3 August 2016, to be assessed on the standard basis.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – SETTLEMENT OFFER - trial – where jury found the publication conveyed the meanings, but found that none of the meanings were defamatory - appeal allowed – findings of jury that meanings were not defamatory set aside and answered affirmative – costs of first trial reserved to await outcome of new trial - new trial limited to availability of defences of qualified privilege and honest opinion and, if applicable, damages – amendment of defence after first trial and appeal to include new defence of triviality pursuant to s 33 of Defamation Act 2005 (Qld) – amendment allowed on first day of new trial – jury questions agreed – jury found defence of triviality proved and not required to find on other defences – judgment for the defendants – whether costs of first trial thrown away amendment – conduct of parties in proceeding - whether defendants’ correspondence a ‘settlement offer’ before proceedings determined within meaning of s 40 of the Act – whether unreasonable response to offer - whether defendants’ ought have costs on an indemnity basis.

Legislation

Civil Proceedings Act 2011 (Qld) s 15.
Defamation Act 2005 (Qld) ss 15, 33, 40.

Uniform Civil Procedure Rules 1999 (Qld) rr 34, 307, 352, 360, 361, 681, 692, 701, 702, 703.

Cases

Calderbank v Calderbank [1975] 3 All ER 333
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Haddon v Forsyth (2) [2011] NSWSC 693
Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127
Kencian & Anor v Watney [2015] QCA 212
Nationwide News Pty Ltd v Weatherup [2017] QCA 70
Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328
Watney v Kencian & Anor [2017] QCA 116

COUNSEL:

Dr M Jonsson QC for the plaintiff

A Boe & P McCafferty for the defendants

SOLICITORS:

Miller Bou-Samra solicitors for the plaintiff

Robertson O’Gorman solicitors for the defendants

The defendants who successfully defended a defamation proceeding after a further jury found that the defence of triviality was made out, now seek their costs from the plaintiff.

I have had the advantage of written submissions since the trials.

Background

The plaintiff, a private school principal, sued the defendants for defamation claiming a letter dated 21 June 2012 conveyed defamatory meanings about him personally and professionally.

The letter was headed “Repeated and Systemic Failures of…

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 Daunt Watney v Kencian

Details

AGLC: Daunt Watney v Kencian [2018] QDC 135
Case: [2018] QDC 135
Decision Date: 24 July 2018

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Daunt Watney, against the defendants, Kencian, concerning an action for defamation. The original proceeding was heard in the District Court of Queensland and subsequently appealed to the Court of Appeal. The primary issue before the court was whether the amendment of the defences to include a new defence of triviality after the first trial, and the subsequent conduct of the parties, warranted the defendants to be awarded costs on an indemnity basis.

The court considered the nature of the amendment, the conduct of the parties, and whether the defendants' correspondence constituted a settlement offer within the meaning of s 40 of the Defamation Act 2005 (Qld). The court found that the amendment was permissible on the first day of the new trial, and the defendants' correspondence did not constitute a settlement offer. The jury found the defence of triviality proved, and the plaintiff's claim was dismissed. The court held that the plaintiff's response to the defendants' conduct was unreasonable, and the defendants were entitled to costs on an indemnity basis.

In light of the findings, the court ordered that the plaintiff would pay the defendants' costs of and incidental to the proceeding, excluding the costs of the trial from 25 July 2016 to 3 August 2016, to be assessed on the standard basis. The court found that the plaintiff's response to the defendants' conduct was unreasonable, and the defendants were entitled to costs on an indemnity basis. This decision highlights the importance of considering the timing of amendments to defences and the conduct of parties in defamation proceedings.

Orders

Orders of the court

1. The plaintiff will pay the defendants’ costs of and incidental to the proceeding, excluding the costs of the trial from 25 July 2016 to 3 August 2016, to be assessed on the standard 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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CITATION:	Daunt Watney v Kencian & Anor [2018] QDC 135
PARTIES:	CHRISTOPHER DAUNT WATNEY (plaintiff) v JANET KENCIAN (first defendant) and ANTHONY WOOLLEY (second defendant)
FILE NO/S:	CLAIM NO: 52 of 2013
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Cairns
DELIVERED ON:	24 July 2018
DELIVERED AT:	Cairns
HEARING DATE:	25-29 July 2016, 1-3 August 2016, 26-29 March 2018, 3-5 April 2018.
JUDGE:	Morzone QC DCJ
ORDER:	1. The plaintiff will pay the defendants’ costs of and incidental to the proceeding, excluding the costs of the trial from 25 July 2016 to 3 August 2016, to be assessed on the standard basis.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – SETTLEMENT OFFER - trial – where jury found the publication conveyed the meanings, but found that none of the meanings were defamatory - appeal allowed – findings of jury that meanings were not defamatory set aside and answered affirmative – costs of first trial reserved to await outcome of new trial - new trial limited to availability of defences of qualified privilege and honest opinion and, if applicable, damages – amendment of defence after first trial and appeal to include new defence of triviality pursuant to s 33 of Defamation Act 2005 (Qld) – amendment allowed on first day of new trial – jury questions agreed – jury found defence of triviality proved and not required to find on other defences – judgment for the defendants – whether costs of first trial thrown away amendment – conduct of parties in proceeding - whether defendants’ correspondence a ‘settlement offer’ before proceedings determined within meaning of s 40 of the Act – whether unreasonable response to offer - whether defendants’ ought have costs on an indemnity basis. *Legislation* Civil Proceedings Act 2011 (Qld) s 15. Defamation Act 2005 (Qld) ss 15, 33, 40. Uniform Civil Procedure Rules 1999 (Qld) rr 34, 307, 352, 360, 361, 681, 692, 701, 702, 703. *Cases* Calderbank v Calderbank [1975] 3 All ER 333 Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Haddon v Forsyth (2) [2011] NSWSC 693 Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 Kencian & Anor v Watney [2015] QCA 212 Nationwide News Pty Ltd v Weatherup [2017] QCA 70 Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328 Watney v Kencian & Anor [2017] QCA 116
COUNSEL:	Dr M Jonsson QC for the plaintiff A Boe & P McCafferty for the defendants
SOLICITORS:	Miller Bou-Samra solicitors for the plaintiff Robertson O’Gorman solicitors for the defendants