Dawson v ACP Publishing Pty Ltd

[2007] NSWSC 542

CITATION:	Charlotte Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542
HEARING DATE(S):	21.05.07
JUDGMENT DATE :	31 May 2007
JUDGMENT OF:	Nicholas J
DECISION:	para 27
CATCHWORDS:	Procedure – Supreme Court procedure – Procedure under Rules of court – Offer of compromise – offer accepted – whether plaintiff entitled to entry of judgment – purpose of compromise regime under Uniform Civil Procedural Rules 2005 (NSW) – operation of r 20.27(3), r 20.29
LEGISLATION CITED:	Civil Procedure Act 2005 s 90, s 133 Uniform Civil Procedure Rules 2005 r 12.1, r 20.26, r 20.27, r 20.29, r 36.11
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529 Cooper v Williams [1963] 2 QB 567 Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146
PARTIES:	Charlotte Dawson - plaintiff ACP Publishing Pty Ltd - defendant
FILE NUMBER(S):	SC 20121/02
COUNSEL:	T Molomby SC/R Rasmussen - plaintiff M O'Brien solicitor - defendant
SOLICITORS:	G J Godden - plaintiff Johnson Winter & Slattery - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

31 May 2007

20121/02 Charlotte Dawson v ACP Publishing Pty Ltd

JUDGMENT

1 His Honour: Following her acceptance of the defendant’s offer of compromise in these proceedings, the plaintiff sought orders for judgment in the sum of $225,000.00, and for payment of costs as agreed or assessed. The defendant opposed the claim. It contended that the proceedings should be finally disposed of by an order that they be permanently stayed, or by giving leave to the plaintiff to discontinue, and it be ordered to pay the plaintiff’s costs up to the date of the offer of compromise.

2 The relevant background is as follows.

3 In these proceedings the plaintiff claimed damages in defamation against the defendant arising out of the publication on about 4 September 2000 of an article in the magazine “Woman’s Day”. On 22 April 2003, in a trial pursuant to s 7A Defamation Act 1974, the jury found that the publication conveyed the five defamatory imputations of which she complained. The defendant defended the claims on a number of grounds, including truth and contextual truth.

4 On 19 March 2007 the defendant’s solicitors served an offer of compromise upon the plaintiff’s solicitors in the following terms:

“The Defendant offers to compromise the Plaintiff’s claim in the proceedings in the following manner:
1. Payment by the Defendant to the Plaintiff in the sum of $225,000 plus legal costs as agreed or assessed, in full and final settlement of the proceedings.
2. This offer shall remain open to be accepted until 19 April 2007.
3. This offer is made in accordance with Part 20, Division 4, Rules 20.25 – 32 of the Uniform Civil Procedure Rules.”

5 By letter dated 18 April 2007 the plaintiff’s solicitors accepted the offer.

6 By letter dated 11 May 2007 the plaintiff’s solicitors sought the agreement of the defendant’s solicitors to entry of judgment pursuant to r 20.33 and form 28 (version 1). Consent was sought to the following:

“The plaintiff and the defendant agree that judgment is to be entered in the following terms:
1. Verdict for the plaintiff in the sum of $225,000.00.
2. Defendant to pay the plaintiff’s legal costs as agreed or assessed.”

7 The request was refused by the letter from the defendant’s solicitors of 17 May 2007 which included the following:

“We confirm our view that your client is not entitled to judgment because of the terms of paragraph 1 of the Offer of Compromise which provides as follows:
“Payment by the Defendant to the Plaintiff in the sum of $225,000 plus legal costs as agreed or assessed, in full and final settlement of the proceedings” .
In our view, the reference to the “settlement of the proceedings” in the Offer indicates that on acceptance of the offer, the proceedings have thereby settled and therefore entry of Judgment would neither be applicable nor appropriate.
We confirm however that our client is agreeable to the proceedings being discontinued with an order that our client pay your client’s costs as agreed or assessed.”

8 In my opinion, the defendant was entitled to refuse to agree to the entry of judgment as proposed. This is because the plaintiff sought judgment by agreement pursuant to Div 5, Pt 20, r 20.33 which was repealed by UCPR (Amendment No. 13) 2007, effective on 5 April 2007. However, nothing turns on this situation for the purpose of this application, and it was not referred to by either party.

9 Payment of the agreed amount was made to the plaintiff prior to the hearing of the motion on 21 May 2007.

10 Part 20 UCPR contains a number of divisions which provide rules for the resolution of proceedings without a hearing, including by way of mediation, arbitration, reference to referees, and compromise. The procedure to facilitate the compromise of proceedings is governed by the rules in Div 4 which, relevantly, provide:

“20.26
(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.
…
(3) A notice of offer:
(a) must bear a statement to the effect that the offer is made in accordance with these rules, and
…
(6) An offer may be expressed to be limited as to the time it is open for acceptance.
…
(8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer.
…
20.27
(1) A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer.
…
(3) If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly.
…
20.29
(1) If the plaintiff, being a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled:
(a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or
(b) to an order that the proceedings be dismissed, and to judgment accordingly,
as the defendant elects, unless the court orders otherwise.
(2) If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled:
(a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or
(b) to an order that the defence be struck out, and to judgment accordingly,
as the plaintiff elects, unless the court orders otherwise.”

11 Relevant to judgments and orders generally are the following provisions of the Civil Procedure Act (the Act):

“90
(1) The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires.
…
133
(1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.”

12 UCPR, Pt 36, r 36.11 includes:

“36.11
(1) Any judgment or order of the court is to be entered.

(2) Unless the court orders otherwise, a judgment or order is taken to be entered:
(a) in the case of a court that uses a computerised court record system, when it is recorded in that system, or
(b) in any other case, when it is recorded, in accordance with the practice of the court, as having been entered.”

13 The plaintiff submitted that, upon its proper construction, r 20.27(3) entitles any party to the compromise, upon acceptance of the offer, to apply for judgment to be entered in accordance with the compromise. It was put that the rule operates to entitle either party to move for the entry of judgment in order to finally dispose of the proceedings, and thereby give effect to the compromise by which the plaintiff gave up her claim. It was conceded that, although a party was entitled to apply, the court had a discretion whether or not to enter judgment having regard to the circumstances.

14 The defendant submitted that under r 20.27(3) judgment should ordinarily be entered only where a party had defaulted under the compromise, and it was necessary to take steps to enforce it. It was put that the phrase “… may apply for judgment to be entered accordingly” reflected the intention that judgment should be entered only when it was appropriate, and for a purpose. It was argued that in this case where payment of the agreed amount had been made, the question of enforcement did not arise, and there was no other purpose to be served by the entry of judgment.

15 The defendant emphasised the importance of recognising that resolution of the proceedings pursuant to a compromise under the rules carried with it no admission of liability, and could not be seen to be tantamount to a determination of disputed questions as to liability and damages. It pointed out that the offer was made, in terms, “… in full and final settlement of the proceedings”, which could not be reasonably understood to include an admission of liability or consent to judgment. The defendant also submitted that entry of judgment would be misunderstood as a judgment on the merits, a situation which would wrongly favour the plaintiff and would cause injustice to the defendant. In this context it was put that the plaintiff in future could seek to point to the amount paid to her as vindication by a judgment of the court.

16 The defendant contended that, in accordance with the compromise, the appropriate course for disposal of the proceedings was either by an order that they be permanently stayed or by giving leave to the plaintiff to discontinue.

17 In my opinion the intended meaning and operation of r 20.27(3) is to be ascertained with regard to its context, namely the procedural rules under Div 4, Pt 20 which provide for the resolution of proceedings without a hearing by compromise. Rule 20.26 prescribes the procedure by which an offer to compromise any claim in the proceedings is to be made. Rule 20.27 is addressed to the acceptance of such an offer. It provides that the compromise of the claim is made upon acceptance of the offer and either party may apply for judgment to be entered accordingly. Thus the purpose of the rule may properly be seen as providing the parties with the means to put an end to the claim by the entry of judgment. Entry of judgment brings finality to the claim, it being the general rule that the court ordinarily has no power to set aside a final judgment once it has been passed and entered (Bailey v Marinoff (1971) 125 CLR 529, p 530; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146, paras 23, 26).

18 The compromise regime under Pt 20, r 20 is intended to be availed of by parties who seek to have claims finally resolved without a hearing. It may be taken that the words of r 20.27(3) were deliberately chosen to enable the parties to obtain the desired finality by entry of judgment in accordance with the compromise. Entry of judgment in accordance with a compromise under these rules makes plain that the resolution of the proceedings was not the result of the determination by the court of issues of liability and damages.

19 The question of enforcement of a compromise involves different considerations. Judgments and orders are unenforceable until entered (s 133(1) of the Act). Part 36, r 36.11(1) directs that any judgment or order of the court is to be entered. The rule also provides the procedure by which judgments or orders are taken to be entered.

20 Part 20, r 20.29 is directed to the situation where a plaintiff or a defendant, being a party to an accepted offer, fails to comply with the terms of the offer. The rule entitles the innocent party to, inter alia, such judgment or order as is appropriate to give effect to the terms of the accepted offer. Thus it entitles the innocent party to seek the court’s assistance in enforcing the agreement by which the claim was finalised.

21 In my opinion, when considered in its context, it is plain that the underlying purpose of each of r 20.27(3) and r 20.29 is different. The purpose for the entry of judgment under r 20.27(3) is to bring to finality the compromised claim, whereas r 20.29 enables a party to seek orders necessary to give effect to its rights under the compromise. It follows that it is not necessary for entry of judgment upon application under r 20.27(3) that a party intends to enforce the compromise. Consistently, in my opinion, the fact that payment of the agreed amount has already been made to the plaintiff in this case is not a ground for declining to take the procedural step which brings finality to the proceedings.

22 Furthermore, in my opinion, if the purpose of the compromise procedure under these rules is to finalise claims, it would not be achieved by providing for disposal of the proceedings otherwise than by entry of judgment. For example, it would be inappropriate to order that the proceedings be stayed. A stay of proceedings may be varied, suspended, or removed if it is just and proper to do so. (Cooper v Williams [1963] 2 QB 567, p 580; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443.) It would be inappropriate to grant leave to a plaintiff to discontinue under Pt 12, r 12.1 as discontinuance does not bar subsequent proceedings unless it was on terms that no new proceedings be brought (KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516, pp 527, 528). It would be inappropriate to dismiss the proceedings. Dismissal of any proceedings, or of any part of a claim for relief, does not, subject to the terms on which any order for dismissal was made, prevent a plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings except where there has been a determination on the merits (s 91 of the Act).

23 With regard to r 20.26(3)(a), the defendant’s offer stated that it was made “… in accordance with Part 20, Division 4, rules 20.25 – 20.32 of the Uniform Civil Procedure Rules”. The defendant may be taken to have been aware at the time the offer was made “… in full and final settlement of the proceedings” that under r 20.27(3) if the offer was accepted both itself and the plaintiff were entitled to apply for judgment to be entered accordingly. Under the scheme the necessary consequence of acceptance is the application of r 20.27(3). Of course, it is always open to a party to offer to compromise or settle proceedings on terms which preclude a party from obtaining judgment, but it not would be an offer to which r 20.26 refers.

24 In the circumstances it is not open to the defendant to oppose the application on the basis that the terms of the offer contain no admission of liability or consent to judgment.

25 Nor do I accept the defendant’s submission that the application be refused on the ground that the plaintiff might point to the amount paid as a vindication of her claim by the court. The plaintiff is under no constraint upon disclosure of the amount paid in compromise of her claim. Of course, it would be wrong of her to represent the payment as an award determined by the court, but it should be assumed that she and her legal representatives are aware of this.

26 Under s 90(1) of the Act the court is to give such judgment or order as the nature of the case requires. In the circumstances of this case the judgment and orders required are those sought by the plaintiff, and in my opinion, there is no basis upon which the court should decline to make them. The judgment should be entered to dispose of the proceedings.

Conclusion

27 Pursuant to Pt 20, r 20.27(3) it is ordered that:

(1) there be judgment for the plaintiff in the sum of $225,000.00;

(2) judgment be entered forthwith;

(3) the defendant to pay the plaintiff’s legal costs as agreed or assessed; and

(4) the defendant to pay the plaintiff’s costs of the motion.

**********