Hallam v Ross (No 3)

[2012] QSC 421

SUPREME COURT OF QUEENSLAND

CITATION:	Hallam v Ross (No 3) [2012] QSC 421
PARTIES:	CRAIG HALLAM
(plaintiff)
v DONALD ROSS
(defendant)
FILE NO:	BS643/10
DIVISION:	Trial
PROCEEDING:	Trial
DELIVERED ON:	21 December 2012
DELIVERED AT:	Brisbane
HEARING	Written submissions on 17, 18 December 2012
DATES:
JUDGE:	Margaret Wilson J
ORDERS:	1) Judgment for the plaintiff in the amount of $18,750.00

together with interest in the sum of $1,968.75;

2) that the defendant, whether by himself or his servants

or agents, be restrained from publishing, or causing to be published, matter of and concerning the plaintiff alleging that the plaintiff is a criminal, has colluded in a criminal way with two other arborists, has falsified a Government certificate and is an arborist whose work

is an example of world’s worst practice, or allegations

having similar effect; and

3)  that the defendant pay the plaintiff’s costs of and

incidental to the proceeding, including reserved costs,
to be assessed on the standard basis.

CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF ACTION – where plaintiff brought a successful action for defamation – where allowance was
made for the mitigating effect of two of the defamatory
imputations being substantially true – whether the interests of
justice require that costs be awarded on the standard or indemnity basis
Defamation Act 2005 (Qld), s 40 Hughes v Western Australian Cricket Association Inc (1986) ATPR 48-135, cited.
COUNSEL:	RJ Anderson for the plaintiff
DP O‘Gorman SC for the defendant
SOLICITORS:	Bennett & Philp as town agents for Winter Hilditch & Fotheringham for the plaintiff McMillan Legal for the defendant

1. MARGARET WILSON J: The parties have made written submissions on the form of the orders and on costs.

2. They agree that orders should be made in the following terms –

   “1. Judgment for the plaintiff in the amount of $18,750.00 together with interest in the

   sum of $1,968.75;

   2. The defendant, whether by himself or his servants or agents, be restrained from

   publishing, or causing to be published, matter of and concerning the plaintiff
   alleging that the plaintiff is a criminal, has colluded in a criminal way with two

   other arborists, has falsified a Government certificate and is an arborist whose

   work is an example of world’s worst practice, or allegations having similar effect.”

3. The outstanding issue is costs.

4. The plaintiff‘s claim was based on the publication of two emails containing

   defamatory statements. His claim was successful, but in the assessment of damages allowance was made for the mitigating effect of two of the imputations in the second email being substantially true.

5. Counsel for the plaintiff asked for an order that the defendant pay the plaintiff‘s

   costs, including reserved costs, on the indemnity basis. Counsel for the defendant submitted that the plaintiff should recover only 60% of his costs, and that they should be assessed on the standard basis.

6. Section 40 of the Defamation Act 2005 (Qld) provides –

“40 Costs in defamation proceedings

(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 theproceedings 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.

(3) In this section—

settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that

was a reasonable offer at the time it was made.

[7]     The plaintiff‘s solicitor Mr Fotheringham has deposed that before the

commencement of the proceeding –

(a)	on 25 May 2009 the plaintiff by his solicitors sent the defendant a Concerns Notice within the meaning of s 14 of the Defamation Act;
(b)	on 4 August 2009 the plaintiff by his solicitors sent the defendant a further Concerns Notice.

On each occasion the plaintiff invited the defendant to offer to make amends, and demanded that he not publish further material of a defamatory nature.

1. The defendant never made a settlement offer, either before or after the proceeding was commenced.

2. Counsel for the plaintiff submitted that in all the circumstances of the case the

   defendant‘s failure to make a settlement offer was unreasonable. It followed, he

submitted, that the Court must award costs on the indemnity basis unless the
interests of justice require otherwise.

1. The Concerns Notices were wider in scope than the subsequent litigation. The first complained of a bundle of emails sent to a host of recipients. It cited two as

   examples – that of 29 April 2009 (one of those on which the plaintiff subsequently

   sued) and another of 8 April 2009. The second contained a list of 10 emails (including the two sued on); the list was said not to be exhaustive. There was no exact correspondence between the imputations alleged in the Concerns Notices and those alleged in the litigation. In the context of the subsequent litigation, I do not

   consider that the plaintiff‘s failure to respond to the Concerns Notices by an offer to

   make amends was itself unreasonable.

2. However, I consider that the defendant was unreasonable in not making an offer to

   settle once the litigation was commenced and the limited scope of the plaintiff‘s

   claim was apparent. The defences of substantial truth never had any real prospect of success except in relation to two imputations. At trial the defendant purported to reserve rights to speak with police, the CMC, the Parliamentary Committee of the CMC and politicians at State and local government level without limitation on what he might say to them, before ultimately conceding that the plaintiff was entitled to a permanent injunction.

3. Counsel for the defendant submitted that the plaintiff‘s costs should be reduced

   because the two imputations were found to be substantially true.

   1

[13] In Hughes v Western Australian Cricket Association Inc Toohey J said –

―A successful party who has failed on certain issues may not only be deprived of

the costs of those issues but may be ordered as well to pay the other party‘s costs

of them. In this sense, ‗issue‘ does not mean a precise issue in the technical

pleading sense but any disputed question of fact or of law.‖

In that case the successful party was awarded only 75% of his costs.

1. As counsel for the defendant submitted, the finding that two of the imputations

   borne by the second email were substantially true arose largely out of the plaintiff‘s

   stating in his report of 21June 2006 that the tree had a SULE of 100+ years, and the accuracy or otherwise of that statement took up a considerable part of the hearing. He submitted that the 37.5% reduction in the damages on account of those imputations being substantially true afforded a reasonable approximation of the

   extent to which the plaintiff‘s costs should be reduced because of this finding.

2. In all of the circumstances of this case, the defendant‘s partial success is, in my

   view, a factor relevant to what costs should be awarded to the plaintiff. I do not accept that the reduction in damages should be used as a yardstick for the

   reasonable approximation of the amount by which the plaintiff‘s costs should be

reduced. However, I am satisfied that the interests of justice require that the costs be
awarded on the standard basis rather than the indemnity basis.

1. There should be an order that the defendant pay the plaintiff‘s costs of and

incidental to the proceeding, including reserved costs, to be assessed on the standard
basis.

1. Orders

   (1) Judgment for the plaintiff in the amount of $18,750.00 together with interest in

   the sum of $1,968.75;

   (2) that the defendant, whether by himself or his servants or agents, be restrained from publishing, or causing to be published, matter of and concerning the plaintiff alleging that the plaintiff is a criminal, has colluded in a criminal way with two other arborists, has falsified a Government certificate and is an arborist

   whose work is an example of world‘s worst practice, or allegations having

   similar effect; and

   (3) that the defendant pay the plaintiff‘s costs of and incidental to the proceeding,

   including reserved costs, to be assessed on the standard basis.

1

(1986) ATPR 48-135 at 48,136-7