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

1. 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.

1. 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.

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

1. 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.

1. 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).

1. 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”.

1. 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.

1. 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 a pivotal role to play in the general determination of which party should pay costs to the other party, if any are to be awarded at all. Given my attitude expressed in paragraph [4] of these reasons, having already taken s 40(1) into account in deciding tentatively the plaintiff’s entitlement to costs, and now so deciding finally, it is unnecessary to address s 40(1) further.

1. Given the circumstances where no offer was made by either party, the issue here is primarily whether the court can be satisfied that the defendant unreasonably failed to make a settlement offer; and, if he did, are there any interests of justice requiring otherwise.

1. Given the fact that, even at trial, the defendant took the position, as asserted in his affidavit filed 9 February 2009, that he neither caused the relevant posters to be created nor caused them to be published, there is no surprise that he made no settlement offer at all.

1. In determining the matter of reasonableness, it needs to be borne in mind that in the reasons for decision published 23 June 2011 I expressly refused to accept the defendant’s denials of both creation and publication.  Further, given that aggravated damages were awarded as well, I find little difficulty in deciding that, by failing to make any offer at all for settlement, the defendant, relevantly, “unreasonably failed”.

1. It is also necessary to bear in mind that the defendant pleaded guilty to criminal charges brought against him relating to acts identical to those which were the subject of this proceeding.

1. In the circumstances, concluding that there are no countervailing “interests of justice”, it is unnecessary to revert to any further consideration of the factors detailed in s 40(1) of the Defamation Act 2005 for the purpose of s 40(2).

1. Consequently, I intend to order, consistently with the obligation placed upon me by s 40(2) of the Defamation Act2005, that the defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on an indemnity basis.