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Haddon v Forsyth (No 2)

Haddon v Forsyth (No 2)

Case [2011] NSWSC 693 8 July 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Haddon v Forsyth (No 2) [2011] NSWSC 693
Hearing dates: 9 June 2011
Decision date: 08 July 2011
Jurisdiction: Common Law
Before: Simpson J
Decision:
The plaintiff pay the defendants' costs assessed on the ordinary basis up to 6 November 2009, and thereafter on an indemnity basis.

Catchwords: DEFAMATION - actions for defamation - verdict for defendants - costs - claim for indemnity costs - plaintiff unrepresented on application - allegations of misuse of superior financial position and conflict of interest - relevance of settlement attempts made by plaintiff prior to commencement of proceedings - refusal of "settlement offers" not unreasonable within s 40(2)(b) Defamation Act 2005 - application of rule 42.15A Uniform Civil Procedure Rules 2005 - characterisation of various "offers of compromise" - genuine offer rejected by plaintiff - costs ordered - to be assessed on indemnity basis following offer
Legislation Cited: Civil Procedure Act 2005
Defamation Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Haddon v Forsyth & Ors (NSWSC, 10 August 2009, unreported)
Haddon v Forsyth [2011] NSWSC 123
Category: Costs
Parties: Bruce Haddon (Plaintiff)
The Right Reverend Robert Forsyth (First Defendant)
The Reverend Dominic Steele (Second Defendant)
Evan Batten (Third Defendant)
Representation: Counsel
In person (Plaintiff)
S T Chrysanthou (Defendants)
Solicitors
Not applicable (Plaintiff)
HWL Ebsworth Lawyers (Defendants)

File Number(s): 2009/297442

Judgment

On 8 March 2011 I delivered judgment ( Haddon v Forsyth [2011] NSWSC 123, "the principal judgment") in these proceedings, which involved a claim by the plaintiff (Bruce Haddon), that, in two email communications of 15 February 2008 published by two defendants (Reverend Dominic Steele and Mr Evan Batten), he had been defamed. The defendants pleaded defences of substantial truth, contextual truth, honest opinion ( Defamation Act 2005, s 31), qualified privilege (at common law) and qualified privilege ( Defamation Act , s 30). I found that, of the five imputations Mr Haddon pleaded, three were conveyed and were defamatory; two were not conveyed. In respect of each imputation, I upheld the defences of substantial truth, qualified privilege at common law, and statutory qualified privilege. I rejected the defences of contextual truth and honest opinion. I also rejected Mr Haddon's claim that the defendants were actuated by malice. Accordingly, I entered a verdict for the defendants; and I indicated that Mr Haddon would have to pay the defendants' costs. I expressed the last matter in that way, without making a formal order, in anticipation of submissions as to the nature of the costs orders that ought to be made.

The defendants have now sought a more specific order as to costs. They claim, alternatively (in descending order of preference) an order as follows:

"(a) The plaintiff pay [the defendants'] costs of the proceedings [ie the whole proceedings] on an indemnity basis;

(b) Alternatively, the plaintiff pay [the defendants'] costs on an indemnity basis from 14 May 2009 to date and…

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 Haddon v Forsyth (No 2)

Details

AGLC: Haddon v Forsyth (No 2) [2011] NSWSC 693
Case: [2011] NSWSC 693
Decision Date: 08 July 2011

CaseChat Overview and Summary

The case of Haddon v Forsyth (No 2) involved a defamation claim brought by Haddon against Forsyth. Haddon alleged that Forsyth had made defamatory statements about him. Forsyth denied the allegations, and the matter proceeded to trial. Following the trial, the court found in favour of Forsyth, leading Haddon to seek indemnity costs from Forsyth for the legal costs incurred during the proceedings.

The primary legal issue was whether Haddon, who was unrepresented during the application for indemnity costs, could be held liable for such costs under the Defamation Act 2005 and the Uniform Civil Procedure Rules 2005. Additionally, the court had to determine whether Forsyth's refusal of settlement offers made by Haddon prior to the commencement of proceedings was reasonable under section 40(2)(b) of the Defamation Act 2005, and whether Forsyth's conduct demonstrated a misuse of a superior financial position or a conflict of interest.

The court held that Forsyth's refusal to accept Haddon's settlement offers was not unreasonable, as the offers did not meet the criteria for a genuine offer of compromise. The court further found that Haddon's failure to accept Forsyth's offer to settle on terms that were more favourable than the eventual court order justified the imposition of indemnity costs. The court concluded that Haddon's unrepresented status did not preclude the application of rule 42.15A of the Uniform Civil Procedure Rules 2005. As a result, the court ordered that the costs of the proceedings be assessed on an indemnity basis, following Forsyth's offer of compromise.

In light of the above, the court ordered that Haddon pay Forsyth's costs on an indemnity basis. The court also noted that the characterisation of the various settlement offers was crucial in determining the reasonableness of Forsyth's conduct. The final orders confirmed that Haddon was liable for the costs incurred by Forsyth in the proceedings, as assessed on an indemnity basis.

Orders