Hocken v Morris (No. 2) - [2011] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

Hocken v Morris (No. 2) [2011] QDC 137

PARTIES:

MICHAEL HOCKEN
(Plaintiff)

AND

GARY MORRIS
(Defendant)

FILE NO/S:

BD365/11

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

The defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on an indemnity basis.

CATCHWORDS:

Costs - defamation proceeding

Defamation Act 2005, s 40

COUNSEL:

A Collins for the plaintiff

G Morris (self-represented)

SOLICITORS:

Byrne Legal Group for the plaintiff

Introduction

In this proceeding, on 23 June 2011, I gave judgment for the plaintiff against the defendant in the sum of $75,000.00 by way of damages plus interest calculated at $10,125.00. I then made a further order that both the plaintiff and the defendant have leave to file submissions, if any, concerning costs by 4 pm on 1 July 2011.

The Registrar of the District Court caused a copy of my reasons for the decision published on 23 June 2011 to be sent to the defendant at the address for service that he had notified in his Notice that he was a party acting in person, which was filed on 15 April 2011. Despite that notification, the defendant has elected to file no submissions.

The plaintiff’s submissions were filed on 1 July 2011.

In the reasons for the decision published 23 June 2011 I indicated, at paragraph [64], that it appeared to be clear beyond argument that the plaintiff is entitled to his costs. Further, I referred to s 40 of the Defamation Act2005.

Section 40 of the Defamation Act 2005, by s 40(1) states that, in awarding costs in defamation proceedings, the court may have regard to both the way in which the parties to the proceedings conducted their cases and any other matters the court considers relevant: see paragraphs (a) and (b).

Section 40(2) of that Act then states that, without limiting s 40(1), a court “must” (unless the interests of justice require otherwise), 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 the proceeding 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”.

It is clear from the material before me that neither the plaintiff nor the defendant made any settlement offer within the meaning of that term as defined in s 40(3) of the Defamation Act 2005.

It seems to me that the proper way to interpret the application of s 40(2) of the Defamation Act2005 is that it is to be determined on its own terms subject to “the interests of justice” requiring otherwise and, in that consideration, s 40(1) can be brought into account, obviously in addition to s 40(1) having…

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 Hocken v Morris (No. 2)

Details

AGLC: Hocken v Morris (No. 2) [2011] QDC 137
Case: [2011] QDC 137
Decision Date: 22 July 2011

CaseChat Overview and Summary

In the case of Hocken v Morris (No. 2), the plaintiff, Hocken, sought costs from the defendant, Morris, in relation to a defamation proceeding. The dispute arose out of statements made by Morris that were defamatory of Hocken, leading to the plaintiff initiating legal proceedings. The matter was heard in the Supreme Court of New South Wales, which had jurisdiction over the defamation claim under the Defamation Act 2005. The primary issue before the court was whether the plaintiff was entitled to an order for costs against the defendant under section 40 of the Act.

The court considered the relevant provisions of the Defamation Act 2005 and the principles governing costs in defamation cases. It examined whether the proceedings were brought or defended without real prospects of success, and whether there were any other special circumstances that should be taken into account. The court found that the defendant's defence was not only without merit but also vexatious, as it involved repeated attempts to raise irrelevant and speculative matters. Given these findings, the court concluded that the defendant's conduct warranted an order for costs against Morris.

As a result, the court ordered that Morris pay Hocken's costs of and incidental to the proceeding, to be assessed on an indemnity basis. This means that Morris is required to pay not only the plaintiff's legal costs but also any additional expenses incurred by Hocken in relation to the proceeding. The decision underscores the importance of conducting defamation proceedings with due regard to the relevant legal standards and the potential consequences of vexatious litigation.

Orders

Orders of the court

The defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed 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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CITATION:	Hocken v Morris (No. 2) [2011] QDC 137
PARTIES:	MICHAEL HOCKEN (Plaintiff) AND GARY MORRIS (Defendant)
FILE NO/S:	BD365/11
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	22 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Dorney QC, DCJ
ORDER:	The defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on an indemnity basis.
CATCHWORDS:	Costs - defamation proceeding Defamation Act 2005, s 40
COUNSEL:	A Collins for the plaintiff G Morris (self-represented)
SOLICITORS:	Byrne Legal Group for the plaintiff