CITATION: Hennessy v Lynch (No. 4) [2008] NSWDC 15 HEARING DATE(S): 14 February 2008
JUDGMENT DATE:
29 February 2008JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Vary order 6 of the orders of 13 December 2007 and order the defendant pay three quarters of the plaintiff’s costs up until the final date for acceptance of the defendant’s Offer of Compromise dated 20 April 2007 and that the plaintiff pay the defendant’s costs thereafter on an indemnity basis. CATCHWORDS: Tort - defamation - costs - s.48A Defamation Act 1974 (NSW) - offer of compromise LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Defamation Act 1974 (NSW), ss.7A, 13 and 48A
Defamation Act 2005 (NSW), s.40
Supreme Court Rules 1970 (NSW), Part 52A r.33
Uniform Civil Procedure Rules 2005 (NSW), Parts 26 and 42CASES CITED: Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, 24 April 1997)
Arian v Nguyen [2001] NSWCA 5
Cooper v Whittingham (1880) 15 Ch D 501
Dering v Uris [1964] 2 QB 669
Haertsch v Andrews and Ors (Ireland J, 1 December 2000)
Hennessy v Lynch (No.3) [2007] NSWDC 268
Jones v Sutton (No.2) [2005] NSWCA 203
Morgan v Wallis (1907) 33 TLR 495
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
National Auto Glass Supplies (Aust) Pty Ltd v Nielsen & Moller Auto Glass (NSW) Pty Ltd (No.9) [2007] FCA 1826
Packer v Meagher [1984] 3 NSWLR 486
Ritter v Godfrey [1920] 2 KB 47
Roache v News Group Newspapers [1998] EMLR 161
Skalkos v Assaf [2002] NSWCA 14
Skalkos v T S Recoveries Pty Ltd [2004] NSWCA 281
Stevens v Sullivan [2002] 1 DCLR (NSW) 138
Williams v Ward (1886) 55 LJQB 556
West and Fortunate Investments Pty Ltd v Nationwide News Pty Ltd [2003] NSWSC 767TEXTS CITED: Gatley on Libel and Slander, 10th ed.
Gazette of Law and Journalism (GLJ Archives, “Costs – October 2003”)PARTIES: Plaintiff: Paul James Hennessy
Defendant: John LynchFILE NUMBER(S): 2288 of 2006 COUNSEL: Plaintiff: B.A.M Connell
Defendant: D Campbell SC / R WeaverSOLICITORS: Plaintiff: Courtenay & Co
Defendant: Higgins & Higgins
Introduction
1. The plaintiff and the defendant each apply for costs orders following the handing down of my judgment in these proceedings: Hennessy v Lynch (No.3) [2007] NSWDC 268. I note that interest on the judgment debt has been mathematically agreed in the sum of $1,038.39.
2. Each of the parties seeks costs orders pursuant to s.48A Defamation Act 1974 (NSW) as follows:
(b) the defendant seeks an order that each party pay his own costs of these proceedings up until the expiry date of an offer of compromise served on 20 April 2007 and that thereafter the plaintiff pay the defendant's costs on an indemnity basis.(a) the plaintiff seeks orders that the defendant pay the plaintiff's costs of these proceedings on a party/party basis;
3. In the judgment handed down on 13 December 2007, I made the following orders:
(1) Judgment for the plaintiff in relation…
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- AGLC
- Hennessy v Lynch (No. 4) [2008] NSWDC 15
- Case
- [2008] NSWDC 15
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions and relevant case law in relation to offers of compromise and their effect on the costs orders in defamation cases. The court recognised that an offer of compromise can be a significant factor in determining the costs order, particularly if it is made at a stage where the plaintiff has not achieved a significant success. The court found that Lynch's offer of compromise, made before the litigation reached a stage where Hennessy had a significant advantage, was a relevant consideration. The court decided that the costs should be apportioned in a manner that reflected the fact that the litigation did not progress significantly beyond the point at which the offer of compromise was made.
Accordingly, the court varied the earlier order to reflect the new costs apportionment. The defendant was ordered to pay three-quarters of the plaintiff's costs up until the final date for acceptance of the offer of compromise, with the plaintiff bearing the defendant's costs thereafter on an indemnity basis. This decision recognised the impact of the offer of compromise on the progression and outcome of the litigation, and adjusted the costs order to reflect the stage of the proceedings at the time of the offer.
Orders
Orders of the court
(1) Vary order 6 of the orders of 13 December 2007 and order the defendant pay three quarters of the plaintiff's costs up until the final date for acceptance of the defendant's Offer of Compromise dated 20 April 2007 and that the plaintiff pay the defendant's costs thereafter on an indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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