District Court
New South Wales
Medium Neutral Citation: Korolak v Bauer Media Pty Ltd (No. 2) [2016] NSWDC 115 Hearing dates: Application determined on the papers Date of orders: 29 June 2016 Decision date: 29 June 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to s 98 Civil Procedure Act 2005 (NSW), the plaintiff pay the defendant’s costs of these proceedings on the ordinary basis up until 26 May 2016 and from 27 May 2016 on an indemnity basis.
Catchwords: COSTS – Calderbank offer to plaintiff expiring on the day of hearing of the defendant’s application for summary dismissal – plaintiff attempts to accept offer during the hearing but is told the offer is withdrawn - defendant seeks indemnity costs following the dismissal of the proceedings – whether indemnity costs from the date of the offer should be awarded Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 and 98
Defamation Act 2005 (NSW), s 40
Legal Profession Act 2004 (NSW), s 364
Legal Profession Uniform Law (NSW), ss 172 and 173
Uniform Civil Procedure Rules 2005 (NSW), rr 28.4, 42.1 and 42.2Cases Cited: Calderbank v Calderbank [1975] All ER 333
Donald Campbell & Co Ltd v Pollack [1927] AC 732
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451
Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994)
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435
Korolak v Bauer Media Pty Ltd [2016] NSWDC 98
Lowe v Lowe (No 3) [2015] NSWSC 1800
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Oshlack v Richmond River Council (1998) 193 CLR 72
Ritter v Godfrey [1920] 2 KB 47
Swindells v Victoria [2016] VSCA 77
Wilkie v Brown [2016] NSWCA 128Category: Costs Parties: Plaintiff: Rhondalynn Korolak
Defendant: Bauer Media Pty Limited (ACN 053 273 546)Representation: Counsel:
Solicitors:
Plaintiff: Mr C A Evatt
Defendant: Ms L Barnett
Plaintiff: Beazley Boorman
Defendant: Johnson Winter & Slattery
File Number(s): 2016/138414 Publication restriction: None
Judgment
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The plaintiff commenced proceedings for defamation, by statement of claim filed on 1 May 2016, for publication of an article in the magazine “Take 5” of an interview she gave describing the circumstances in which the plaintiff’s mother was murdered by her brother.
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On 9 June 2016 I struck out all of the plaintiff’s imputations and entered judgment for the defendant pursuant to r 28.4(2)(a) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”): Korolak v Bauer Media Pty Ltd [2016] NSWDC 98. The parties requested that I reserve the issue of costs, so that the issue of costs could be separately determined. The parties have now provided me with the written submissions on costs upon which this judgment is based.
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From those submissions, it is clear that both parties made offers of settlement. While the offer the subject of submissions is the defendant’s Calderbank offer (Calderbank v Calderbank
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- Case
- [2016] NSWDC 115
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the procedural history and the timing of the Calderbank offer's expiration and acceptance attempt. It was established that the offer expired on the day of the hearing, and the plaintiff's attempt to accept it during the hearing was futile as the offer had already been withdrawn. The court held that the plaintiff's actions were unreasonable, given that he was aware of the impending expiration of the offer. This unreasonableness, combined with the dismissal of the proceedings, warranted an award of indemnity costs from the date of the Calderbank offer. The court concluded that the plaintiff's failure to timely accept the offer contributed to the proceedings' dismissal and thus justified the imposition of indemnity costs.
Consequently, the court ordered that the plaintiff pay the defendant's costs of the proceedings on the ordinary basis until 26 May 2016 and from 27 May 2016 on an indemnity basis. This decision underscored the importance of adhering to procedural timelines and the consequences of failing to do so. The court's ruling highlighted the necessity for parties to act with due diligence in accepting offers, especially when such offers are time-bound, to avoid the imposition of indemnity costs.
Orders
Orders of the court
(1) Pursuant to s 98 Civil Procedure Act 2005 (NSW), the plaintiff pay the defendant’s costs of these proceedings on the ordinary basis up until 26 May 2016 and from 27 May 2016 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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