Korolak v Bauer Media Pty Ltd (No. 2)

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application for summary dismissal – plaintiff attempts to accept offer during the hearing but is told the offer is withdrawn - defendant seeks indemnity costs following the dismissal of the proceedings – whether indemnity costs from the date of the offer should be awarded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 42.2
Cases 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 128
Category:	Costs
Parties:	Plaintiff: Rhondalynn Korolak Defendant: Bauer Media Pty Limited (ACN 053 273 546)
Representation:	Counsel: Plaintiff: Mr C A Evatt Defendant: Ms L Barnett   Solicitors: Plaintiff: Beazley Boorman Defendant: Johnson Winter & Slattery
File Number(s):	2016/138414
Publication restriction:	None

Judgment

1. 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.

2. 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.

3. 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