Harvey v Henderson (No 3) - [2025] NSWSC 1186

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Harvey v Henderson (No 3) [2025] NSWSC 1186
Hearing dates: On the papers
Date of orders: 10 October 2025
Decision date: 10 October 2025
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The Court vacates orders (3), (5) and (6) of the orders that issued on 12 June 2025, as amended, and makes the following orders in lieu:
(3)   The defendants, jointly and severally, shall pay interest at the rate of 3% per annum on $65,000 from 1 July 2020 to 12 June 2025 (date of judgment) in the sum of $9,659.18.
(5)   The defendants, jointly and severally, shall pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis.

Catchwords:
COSTS — party/party — indemnity basis — defamation proceedings — where defendants did not accept two settlement offers — where defendants failed to make settlement offer in reply — indemnity costs awarded

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Defamation Act 2005 (NSW), s 40
Legal Profession Uniform Law (NSW)
Uniform Civil Procedure Rules, rr 14.14, 42.1, 42.2, 42.14

Cases Cited:
Harvey v Henderson [2025] NSWSC 601
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Category: Costs
Parties: Laurae Harvey (Plaintiff)
Gary Henderson (Defendant)
Representation:
Counsel:
R Rasmussen / A M Cheema (Plaintiff)
Solicitors:
Kalantzis Lawyers (Plaintiff)
Carroll Lawyers (Defendant)

File Number(s): 2020/348051
Publication restriction: N/A

JUDGMENT

HIS HONOUR: The Court is required to deal with an application for indemnity costs. On 12 June 2025, the Court as presently constituted, issued judgment for the plaintiff (“the Principal Judgment”),^[1] in which the Court ordered the defendants to pay damages, interest and costs. It also restrained the defendants from publishing on the internet or anywhere else material that repeated the imputations found to be defamatory.
1. Harvey v Henderson [2025] NSWSC 601.
The orders that issued with the Principal Judgment granted leave to make any application for any special order as to costs and to file a short minute of order reflecting the judgment and orders otherwise issued.
On 26 June 2025, the plaintiff filed the application for orders that costs be paid on an indemnity basis and filed a short minute of order in accordance with the directions.
On or about 17 July 2025, on request, the Court made orders extending the time for the filing of submissions by the defendants on the question of costs. The extension of time permitted the defendants to file any submissions they sought on the application for indemnity costs by 5pm, 2 September 2025. Further, it directed that any reply to such submissions be filed by the plaintiff by 5pm, 9 September 2025.
On 9 September 2025, the plaintiff communicated with the Court to the effect that the defendants had filed no submissions in reply to the application for indemnity costs made by the plaintiff in accordance with the extended timetable or at all. Further, no objection had or has been taken…

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 Harvey v Henderson (No 3)

Details

AGLC: Harvey v Henderson (No 3) [2025] NSWSC 1186
Case: [2025] NSWSC 1186
Decision Date: 10 October 2025

CaseChat Overview and Summary

In Harvey v Henderson (No 3), the High Court of Australia considered the issue of indemnity costs in the context of defamation proceedings. The plaintiffs, Harvey, were the plaintiffs in the underlying defamation action against the defendants, Henderson. The primary dispute in the case revolved around the refusal of the defendants to accept two settlement offers made by the plaintiffs and their subsequent failure to make a counter offer. The High Court was tasked with determining whether the defendants were liable for the plaintiffs' indemnity costs under the applicable legal principles.

The court examined the circumstances surrounding the settlement offers and the legal principles governing costs in defamation cases. The High Court noted that the defendants had not only rejected the two settlement offers but had also failed to make a counter offer, which is a critical step in the negotiation process. The court held that the defendants' refusal to engage in settlement negotiations and their failure to make a counter offer justified the award of indemnity costs to the plaintiffs. The court emphasised that in defamation cases, where the defendant's conduct demonstrates a lack of willingness to resolve the dispute, the court may grant indemnity costs to the plaintiff as a means of discouraging such conduct.

The High Court concluded that the defendants' refusal to accept the settlement offers and their failure to make a counter offer warranted the award of indemnity costs to the plaintiffs. The court found that the defendants' conduct was unreasonable and that the plaintiffs had acted reasonably in making the settlement offers. The court further held that the award of indemnity costs was necessary to ensure that the defendants were held accountable for their conduct and to deter similar behaviour in future cases. The High Court's decision in Harvey v Henderson (No 3) provides clear guidance on the circumstances in which indemnity costs may be awarded in defamation proceedings and reinforces the importance of good faith settlement negotiations.

Orders