Hanson-Young v Leyonhjelm (No 5)

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FEDERAL COURT OF AUSTRALIA

Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34

File number: NSD 1370 of 2018
Judge: WHITE J
Date of judgment: 31 January 2020
Catchwords: DEFAMATION – appropriate interest rate on the sum awarded for non-economic loss – whether the Applicant should be granted permanent injunctive relief – assessment of the existence and degree of the risk of repetition of the publication of the defamatory matters – whether costs should be awarded on an indemnity basis pursuant to s 40(2) of the Defamation Act 2005 (NSW) –whether the respondent had unreasonably failed to make an offer of settlement – held: injunctive relief refused – respondent to pay costs on an indemnity basis.
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 23, 51A

Parliamentary Privileges Act 1987 (Cth) s 16(3)

Australian Solicitors’ Conduct Rules r 4.1.2

Federal Court Rules 2011 (Cth) rr 25, 26.12, 40.08

Civil Liability Act 1936 (SA) ss 51, 56

Civil Liability Act 2002 (NSW) ss 11A, 18

Defamation Act 2005 (NSW) s 40

Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57

Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844

Bishop v State of New South Wales, 17 November 2000

Calderbank v Calderbank [1973] 3 All ER 333

Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351

Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33

Cornes v Ten Group Pty Ltd (No 2) [2011] SASC 141

Davis v Nationwide News Pty Ltd [2008] NSWSC 946

Dometic Australia Pty Ltd v Houghton Leisure Products Pty Ltd (No 2) [2019] FCA 57

Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877

Haines v Bendall (1991) 172 CLR 60

Hallam v Ross (No 2) [2012] QSC 407

Hanson‑Young v Leyonhjelm [2018] FCA 1688; (2018) 364 ALR 624

Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981

Harbour Radio Pty Ltd v Wagner [2019] QCA 221

Harrigan v Jones [2001] NSWSC 623

Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; (2015) 237 FCR 127

Holt v TCN Channel Nine Pty Ltd (No 2) [2012] NSWSC 968; (2012) 82 NSWLR 293

Hungerfords v Walker (1989) 171 CLR 125

Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705

Leichardt Municipal Council v Green [2004] NSWCA 341

Leyonhjelm v Hanson‑Young [2019] FCA 156

Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd [1994] FCA 302

M.B.P. (S.A.) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657

McKerlie v New South Wales (No 2) [2000] NSWSC 1159

Nextra Australia Pty Ltd v Fletcher (No 2) [2014] FCA 682

Prendergast v Roberts [2012] QSC 144

Ramsey v Annesley College (No 2) [2013] SASC 145

Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852

Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353

Transport Accident Commission v Coyle [2001] VSCA 236; (2001)…

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Details
Case
[2020] FCA 34
Decision Date

CaseChat Overview and Summary

In the case of Hanson-Young v Leyonhjelm (No 5), the Federal Court considered several issues including the appropriate interest rate for sums awarded for non-economic loss, the granting of permanent injunctive relief, the risk of repetition of defamatory publications, the assessment of costs on an indemnity basis under section 40(2) of the Defamation Act 2005 (NSW), and whether the respondent had unreasonably failed to make an offer of settlement. The case involved a dispute between Senator Hanson-Young, the applicant, and Senator Leyonhjelm, the respondent, over defamatory statements made by the respondent.

The primary legal issues before the court were whether the respondent should be ordered to pay indemnity costs under section 40(2) of the Defamation Act 2005 (NSW) due to his unreasonable failure to make a settlement offer, and whether the applicant's claim for permanent injunctive relief should be granted. The court also needed to determine the appropriate interest rate on sums awarded for non-economic loss and assess the risk of repetition of the defamatory matters.

The court found that there was no basis to suggest that orders for indemnity costs under section 40 would be rare. Instead, the statute requires such an order when the specified circumstances exist, unless the court decides otherwise in the interests of justice. The court concluded that the respondent unreasonably failed to make a settlement offer, and as the interests of justice did not require a different outcome, the respondent should be ordered to pay the applicant’s costs on an indemnity basis. The court also ruled that the applicant’s claim for a permanent injunction should be refused.

The final orders of the court were that the applicant’s application for a permanent injunction be refused and that the respondent pay the applicant’s costs of and incidental to the proceedings, other than those costs subject to the court's previous orders, on an indemnity basis.

Orders

Orders of the court

1. The Applicant’s application for a permanent injunction be refused.

2. The Respondent is to pay the Applicant’s costs of and incidental to the proceedings, other than the costs which are the subject of the Court’s previous orders, on an indemnity basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Contrary to the respondent’s submissions, there is no basis upon which to suppose that the circumstances in which an order for indemnity costs under s 40 will be rare. Instead, s 40(2) requires that, when the circumstances to which it refers exist, such an order be made, subject to the Court concluding that the interests of justice require otherwise.Conclusion on respondent’s failure to make a settlement offer For these reasons, I am satisfied that the respondent did unreasonably fail to make a settlement offer. It is therefore unnecessary to consider the alternative basis on which the applicant advanced the claim for indemnity costs, namely, reliance on Pt 25 of the FCR. As the interests of justice do not require a contrary position, I consider that the Court should, as required by s 40(2), order the respondent to pay the applicant’s costs assessed on an indemnity basis. The applicant did not seek any revision of the costs orders previously made in the proceedings.Summary In summary, the applicant’s claim for injunctive relief is refused. The respondent is to pay the applicant’s costs of and incidental to the proceedings, other than the costs which are the subject of the Court’s previous orders, on an indemnity basis.

Ratio Decidendi

Legal Principle Established

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