Dossis v Andreadis (No 5) - [2012] SADC 118

District Court of South Australia
(Civil)
DOSSIS v ANDREADIS (No 5)
[2012] SADC 118
Reasons of His Honour Judge Slattery (ex tempore)
12 September 2012
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS
Application by Plaintiff for costs on an indemnity basis.
Held: application granted.
Defamation Act 2005 s38, referred to.
Dossis v Andreadis (No 4) [2012] SADC 114; Cornes v The Ten Group [2012] SASC 99, considered.

DOSSIS v ANDREADIS (No 5)
[2012] SADC 118

The plaintiff’s application is for indemnity costs under s38 of the Defamation Act 2005.
That section provides as follows:
(1)     In awarding costs in defamation proceedings, the court may have regard to—
(a)     the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b)     any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a)     if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)     if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
The plaintiff’s specific application is under ss(2) of s38 of the Act. That subsection appears to operate in a way that is not restricted by the terms of ss(1). My consideration of the judgment of the Full Court of the Supreme Court in Cornes v The Ten Group (2012) SASFC 99 (see the judgment of Gray J Full Court at paras.116-126 inclusive) does not disclose whether any attention was given to the question of the interconnection, if any, between ss(1) and (2) of s38. Having regard to my decision in this matter it is not necessary to consider that matter further.
The plaintiff submits, and I accept, that in the preparation for trial the defendant was, at best, sporadic in his involvement and inconsistent as to whether he was represented by solicitors or not. I have set out some of the detail in paras.10-21 of my judgment Dossis v Andreadis (No.4) [2012] SADC 114.
These facts, it was submitted, were relevant to the matters to be taken into account in the exercise of my discretion under ss(1) and (2) of s 38. I agree with that submission. In my view, the content of s38(1)(a) indicate that the conduct of a case involves the consideration of the whole of the proceeding and not just of the trial of the matter. The concept of an early resolution of a proceeding carries with it an examination of a party’s conduct well before the matter reaches the door of the trial court.
In respect of the exercise of my discretion I take into account that the defendant has failed to file an offer of settlement at the court and he has made no other separate offer of settlement.
I have received into evidence as Exhibit P35 the affidavit of Tuan Ngoc Nguyen sworn on 6 September 2012. It discloses that a letter was sent from Mantzoros & Partners lawyers addressed to Mr Dimos Andreadis dated 28 May 2012. It is marked without prejudice as to costs. It sets out an offer of settlement from the plaintiff to the defendant the details of which are as follows:
The offer of $30000 is comprised of the following:
(1) $5000 in damages;
(2)20,000 in costs.
This offer is open for acceptance for 28 days from the date of this letter. Accordingly, if this offer is not being accepted by close of business on 25 June 2012 it will be withdrawn.
The offer purports to be made pursuant to the principles enunciated in Calderbank v Calderbank. Whether it succeeds in that attempt is not a matter for necessary consideration here.
Exhibit 2 to the affidavit P35 discloses a response from Mr Andreadis to Mantzoros & Partners letter, Exhibit P1. It reads as follows:
In response to your letter dated 28 May 2012 ... I say: - offer refused for cause and timely returned to you. - it is my wish not to contract with your corporation.
In the third exhibit to the affidavit a further offer on a without prejudice basis was made by the plaintiff to the defendant on the evening of Sunday, 2 September 2012 being the date immediately before the date due for commencement of the hearing of the matter. In that offer, the plaintiff undertook to settle the action on the following basis:
(1)that the defendant promise and agree to never send via mail, email or any other means, any defamatory information about anyone.
(2)agree to pay half of the legal fees to date.
In the absence of any evidence to the contrary I am satisfied that these offers of the plaintiff, that is the first and third exhibits to Exhibit P35, were communicated to and received by the defendant and that the defendant rejected the first offer of 28 May 2012.
In my view, each of the offers made by the plaintiff were reasonable although the importance and weight to be given to the second offer immediately prior to trial is lessened because of its timing.
The plaintiff has made settlement offers that the defendant should have accepted or at least to which further consideration should have been given by him. There is no explanation about why the defendant did not accept them or at least to have entered into some negotiation or discussion about resolving the matter without the necessity for a lengthy hearing before the court.
In fact, the first offer was formally rejected ‘for cause’ as if on the merits. If there were any merits in the defence of the defendant, those merits were not ventilated in the trial of this matter.
Notwithstanding, the failure by the defendant to accept offers made to him and to make offers of settlement to the plaintiff are two of the categories of matters that are to be taken into account in the exercise of my discretion in this matter. In the exercise of my discretion, it is necessary to give different weight to the first offer of 28 June 2012, made well before trial, than to the later offer immediately prior to trial.
I have taken into account all of these matters and all of the matters put to me by the plaintiff in reaching my decision in this matter.
I am satisfied that the threshold test for s38(2)(a) of the Defamation Act 2005 have been satisfied. I am, therefore, satisfied that I am entitled to and I make an order for indemnity costs in favour of the plaintiff. I so order.