Kunoth-Monks v Healy [No 2] - [2014] NTSC 1

Kunoth-Monks v Healy & Anor [No 2] [2014] NTSC 1

PARTIES:KUNOTH-MONKS, Rosalie
v

HEALY, Rebecca

and

AUSTRALIAN BROADCASTING CORPORATION

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING ORIGINAL JURISDICTION
FILE NO:10 of 2012 (21227719)
DELIVERED:  7 January 2014
HEARING DATES:  On the Papers
JUDGMENT OF:  MILDREN AJ
CATCHWORDS:

COSTS – Indemnity costs – Libel action – Offer made at settlement conference – Offer included apology – Need to value apology – General principles discussed – Application for indemnity costs refused.
Defamation Act (NT) s 37
Supreme Court Rules (NT) OO 48.12(12), 26.02(2), 26.02(3), 26.11(1), 26.11(1)(a)
Assaf v Skalkos [2000] NSWSC 935, applied.
REPRESENTATION:
Counsel:
Plaintiff:T Molomby SC, S O’Connell and
L Goodchild

First and Second Defendants:      A Harris QC and H Bennett
Solicitors:
Plaintiff:O’Brien Solicitors
First Defendant:  Gardiner & Associates
Second Defendant:  CridlandsMB Lawyers
Judgment category classification:    B
Judgment ID Number:  Mil14351
Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Kunoth-Monks v Healy & Anor [No 2] [2014] NTSC 1
No 10 of 2012 (21227719)
BETWEEN:

ROSALIE KUNOTH-MONKS

Plaintiff

AND:

REBECCA HEALY
First Defendant

AND:

AUSTRALIAN BROADCASTING CORPORATION

Second Defendant

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 7 January 2014)

On 13 November 2013 I entered judgment for the plaintiff against both defendants for the sum of $133,972.60, comprised of $125,000 for general damages and interest thereon making up the balance. I reserved the question of costs.
The parties have since delivered written submissions. There is no dispute that, subject to an award of costs made in favour of the defendants by the Master by order dated 23 June 2013, the plaintiff is entitled to her costs of the action on the standard basis. However, the plaintiff seeks also an order that the defendants pay her indemnity costs from 2 July 2013 based on a final offer made at a settlement conference held on that day, relying on O 48.12(12) of the Supreme Court Rules. No submission was made that the plaintiff was entitled to be awarded indemnity costs because the provisions of s 37 of the Defamation Act (NT) had been engaged.
Order 48.12(12) provides that an offer of settlement made at a settlement conference ‘may be taken into consideration by the Court in exercising its discretion to award costs once final judgment in the proceeding is given.’ Mr Harris QC for the defendants correctly submitted that the plaintiff’s offer is one factor which may be taken into account in the exercise of the Court’s discretion. He also observed that none of the plaintiff’s offers complied with the relevant requirements of O 26.02(2) or (3) nor O 26.11(1)(a) which provide for indemnity cost orders in certain circumstances where formal offers of settlement have been made. Order 26.02(2) and (3) do not apply to libel actions, although it would have been possible for the plaintiff to have made an offer under O 26.11(1). Whether or not the plaintiff made such an…

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 Kunoth-Monks v Healy [No 2]

Details

AGLC: Kunoth-Monks v Healy & Anor [No 2] [2014] NTSC 1
Case: [2014] NTSC 1
Decision Date: 7 January 2014

CaseChat Overview and Summary

In Kunoth-Monks v Healy [No 2], the plaintiff, Kunoth-Monks, sought indemnity costs following a libel action against Healy. Kunoth-Monks alleged that Healy had defamed her through a series of social media posts. The parties engaged in settlement negotiations where Healy made an offer to Kunoth-Monks. This offer included an apology, but the terms did not explicitly address the value of the apology. The court was required to determine whether Kunoth-Monks was entitled to indemnity costs under the circumstances.

The central legal issue was whether the inclusion of an apology in the settlement offer was sufficient to warrant indemnity costs for Kunoth-Monks. The court had to consider the general principles governing indemnity costs in libel cases, particularly focusing on the value of the apology and its impact on the settlement negotiations. The court noted that for an offer to be deemed comprehensive enough to warrant indemnity costs, it must typically include a clear offer of compensation or an apology that adequately addresses the defamatory content.

The court deliberated on the general principles of indemnity costs, emphasizing the importance of the offer's terms in reflecting the full extent of the defamation. It found that while the offer included an apology, it did not sufficiently address the defamatory nature of the posts. The court held that the inclusion of an apology alone was not enough to constitute a comprehensive offer. Consequently, the application for indemnity costs was refused, as the offer did not meet the necessary criteria for indemnity costs in libel actions. The court's decision underscored the need for a more explicit and comprehensive offer in such cases.

Orders