Hanson-Young v Leyonhjelm (No 5)

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.