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Davis v Nationwide News Pty Ltd

Davis v Nationwide News Pty Ltd

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Case Copied 12 September 2008 17 min read

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CITATION: Davis v Nationwide News Pty Ltd [2008] NSWSC 946

HEARING DATE(S): 28 August 2008

JUDGMENT DATE :
12 September 2008

JURISDICTION: 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 2002

CASES 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 90-441

PARTIES: 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 LIST

McCLELLAN CJ at CL

FRIDAY 12 SEPTEMBER 2008

20149/06 DAVIS v NATIONWIDE NEWS PTY LIMITED
JUDGMENT

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…

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.

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Details

Case: [2008] NSWSC 946
Decision Date: 12 September 2008

CaseChat Overview and Summary

In Davis v Nationwide News Pty Ltd, the plaintiff alleged that the defendant had defamed him in two publications. The dispute reached the court, which was required to determine the appropriate rate of interest on the damages awarded and assess the costs implications of an offer of compromise made by the defendant. The court had to consider the application of rule 42.14 of the Uniform Civil Procedure Rules and section 40 of the Defamation Act 2005. Specifically, the court had to decide whether the defendant had unreasonably failed to make a settlement offer and whether the plaintiff was entitled to an indemnity costs order.

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