CITATION: Davis v Nationwide News Pty Ltd [2008] NSWSC 946 HEARING DATE(S): 28 August 2008
JUDGMENT DATE :
12 September 2008JURISDICTION: Civil JUDGMENT OF: McClellan CJatCL DECISION: 1. Verdict and judgment for the plaintiff in the sum of $150,736
2. I order the defendant to pay the plaintiff's costs assessed on an indemnity basis
3. Exhibits may be returned.CATCHWORDS: COSTS - plaintiff defamed in two publications - interest on damages - assessment of appropriate rate of interest - offer of compromise - application of rule 42.14 Uniform Civil Procedure Rules - costs regime under s 40 Defamation Act 2005 - whether defendant unreasonably failed to make settlement offer - whether plaintiff entitled to indemnity costs order LEGISLATION CITED: Defamation Act 2005
Defamation Act 1974
Defamation Amendment Act 2002CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Hillier v Sheather (1995) 36 NSWLR 414
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270
Windsurfing International Inc v Petit (1987) AIPC 90-441PARTIES: Judy Davis (Pltf)
Nationwide News (Def)FILE NUMBER(S): SC 20149/06 COUNSEL: R Glasson (Pltf)
T D Blackburn SC/J O Hmelnitsky (Def)SOLICITORS: Brophy Bridge & Mirow Solicitors (Pltf)
Blake Dawson (Def)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LISTMcCLELLAN CJ at CL
FRIDAY 12 SEPTEMBER 2008
JUDGMENT20149/06 DAVIS v NATIONWIDE NEWS PTY LIMITED
1 HIS HONOUR: Ms Davis sued the defendant claiming damages for defamation. The proceedings were brought pursuant to the Defamation Act 2005 (“the Act”). On 11 July 2008 I determined that Ms Davis should be awarded damages in the sum of $140,000.
2 Ms Davis is also entitled to an award of interest. However, the parties have been unable to agree the appropriate rate. She is also entitled to an order for costs and seeks an order on an indemnity basis. The defendant submitted that the order for costs should be confined to an order for 50% of her costs on a party/party basis.
History of the proceedings
3 Ms Davis originally complained that she was defamed in three articles published by the Daily Telegraph on 22 February 2006 and 23 February 2006. She also complained of articles similar to two of the articles published in the Daily Telegraph. One was published in both the Courier Mail in Queensland and the Sunday Times in Perth, and the other was published in the Sunday Mail in Queensland.
4 On 20 March 2006 Ms Davis’ solicitors sent a “concerns notice” to the defendant as contemplated by s 14 of the Act. Section 14(2)(b) provides that a “concerns notice” is a notice which informs the publisher of the alleged defamatory imputations that an aggrieved person considers to be carried in the relevant publication. In that notice Ms Davis complained of 11 imputations.
5 The defendant responded to the notice by letter dated 21…
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- Case
- [2008] NSWSC 946
- Decision Date
CaseChat Overview and Summary
The court began by examining the statutory framework and the principles governing offers of compromise. It found that the defendant's offer, which came after the plaintiff had issued proceedings but before judgment, was not a genuine attempt to resolve the dispute. This conclusion was based on the timing and the lack of substantive negotiation. The court then turned to section 40 of the Defamation Act, which allows for indemnity costs if a party unreasonably fails to make a settlement offer. The court held that the defendant's conduct constituted an unreasonable failure to make a settlement offer, thereby justifying an indemnity costs order under the statute. The court assessed the appropriate rate of interest on the damages, considering the nature of the defamation and the delay in resolution.
The court awarded the plaintiff interest on the damages from the date of publication of the defamatory material to the date of judgment. It also granted the plaintiff an indemnity costs order against the defendant, reflecting the unreasonable failure to make a settlement offer. This decision underscored the importance of early and genuine attempts at dispute resolution, particularly in defamation cases where reputational harm can be significant. The court's orders were designed to provide both financial and procedural justice to the plaintiff, recognising the impact of the defendant's conduct on the litigation process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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