Laing v Bibby

[2025] VCC 152

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

DEFAMATION LIST

Case No.CI-24-01195

Angus Laing	Plaintiff
v
Defendant

Melissa Bibby

---

JUDGE:	CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2025
DATE OF RULING:	21 January 2025
CASE MAY BE CITED AS:	Laing v Bibby
MEDIUM NEUTRAL CITATION:	[2025] VCC 152

RULING
---

Subject:DEFAMATION

Catchwords:              Costs application – serious harm - indemnity costs – fixed sum costs order - where plaintiff discontinues proceedings – reasonableness of settlement offer – offer to apologise and publish correction – failure of plaintiff to respond – where defendant incurs reasonable costs of defending the proceeding

Legislation Cited:      Defamation Act 2005

Cases Cited:Haddon v Forsyth (No 2) [2011] NSWSC 693

Rayney v Reynolds (No 4) [2022] WASC 360

Ruling:  The plaintiff pay the defendant’s costs of the proceeding.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Main	Tony Hargreaves and Partners
For the Defendant	Self-represented	Self-represented

HER HONOUR:

1These are written reasons of an ex tempore ruling I made on 21 January 2024.

2This is an application by the defendant, Ms Bibby, for her costs of the proceeding.

Background

3Ms Bibby has an apartment in The Park Apartments. The plaintiff, Mr Laing provides maintenance services to The Park Apartments.

4Mr Laing issued proceedings against Ms Bibby on 6 March 2024 alleging he had been defamed in two publications which had caused serious harm to his reputation.

5The first publication was an email (“the email”) allegedly sent by Ms Bibby to four named recipients.  Those recipients were the building manager of The Park Apartments and three people who work for Victorian Body Corporate Services Pty Ltd which manages The Park Apartments.

6The second publication was a sign (“the sign”) Ms Bibby allegedly placed on the front windscreen of her motor vehicle.  The plaintiff alleged the sign was on display from 16 January 2024 until at least 21 January 2024, and was “read and comprehended by people in Victoria”.

7The plaintiff alleged the publications contained imputations that he was a thief.

8Ms Bibby admitted she sent the email and placed the sign in her vehicle, but said the sign was only on display for approximately an hour and a half. 

9Mr Laing sent Ms Bibby a concerns notice on 18 January 2024 alleging he was entitled to a substantial award of damage, reserving his rights to special damages and seeking publication of a correction notice and a correction email, payment of legal costs and an appropriate offer of compensation for loss and damage.

10On 10 May 2024 the plaintiff filed an amended statement of claim which contained minor amendments.

11Ms Bibby filed her amended defence on 3 June 2024. In that defence she said that, although she had received the concerns notice by email, she had not opened it until 13 March 2024 and she had not received a physical copy of the letter.  I understand this to mean that, although she had been formally served, she had no opportunity to respond to the concerns notice, prior to proceedings being issued.  Notwithstanding this, she did not seek to make an application to have the matter struck out on the basis that a concerns notice had not been served. 

12On 5 August 2024 the plaintiff filed a reply to the defence, in which he identified by name four persons and “other residents of The Park Apartments” said to have read the sign.

13On 28 June 2024 Ms Bibby offered to settle the claim on the basis that the proceeding be dismissed, each party bear their own costs and Ms Bibby would send an apology and correction to recipients of the email.

14There was no response from the plaintiff to that offer.

15On 2 July 2024 I made orders by consent setting the matter down for trial and other orders including that any request for further and better particulars must be filed by 9 August 2024.  The matter was listed for further directions in November.

16On 16 August 2024 Ms Bibby filed an amended defence and a request for further and better particulars of the plaintiff’s claim.

17Ms Bibby sought further and better particulars of the statement of claim, including publication of the persons, other than the four named recipients, Mr Laing alleged had read and comprehended the email, and the “usual particulars” of persons, including the four named persons, Mr Laing alleged had viewed the sign.

18On 25 September 2024 lawyers for Mr Laing filed a notice of ceasing to act.

19Ms Bibby did not receive a response to her request for further and better particulars.  She wrote to Mr Laing twice in October 2024 seeking a response and advising that if no response was received, she would make an application to the Court.  This did not prompt any action from Mr Laing.

20On 25 October 2024 Ms Bibby filed a summons seeking orders that Mr Laing  provide the further and better particulars sought.  That summons was listed to be heard on 7 November 2024.

21In preparation for that summons, Ms Bibby  briefed counsel who prepared and filed written submissions, including providing relevant authorities to the Court.

22Despite Ms Bibby’s attempts to engage with Mr Laing, he did not communicate with Ms Bibby prior to that hearing.

23At the hearing of the summons Mr Laing informed the Court that he did not wish to pursue his claim. 

24I explained to Mr Laing that, while it was open to him to discontinue his proceeding at any time, in the ordinary course of events, taking such a step would result in an order that he pay Ms Bibby’s costs of the proceeding.  Mr Laing said he was not willing to pay Ms Bibby’s costs, notwithstanding that he had discontinued his proceeding.

25At the request of Ms Bibby and given that Mr Laing was not legally represented I adjourned the question of costs to this hearing.

26Following the 7 November 2024 hearing Ms Bibby offered to settle her claim for costs on the basis that Mr Laing pay 80% of the costs she had incurred to date. No response to that offer was received.

27Accordingly Ms Bibby makes this application for her indemnity costs of the proceeding, including of the hearing to date.

28Mr Laing maintains he has a viable claim which he did not pursue because of the financial burden it placed on him.

29He says the fact that Ms Bibby offered to make an apology to settle the claim demonstrates her acknowledgement of her “guilt”.  He says she brought the costs on herself as she could have settled the case prior to proceedings being issued by offering a simple apology.

Section 40 of the Defamation Act

30Where proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant, section 40(2)(b) of the DefamationAct 2005 requires the Court to order that costs be assessed on an indemnity basis if it is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant, unless the interests of justice otherwise require.

31An award of costs on an indemnity basis is applicable to the entirety of the costs incurred and is not limited to the period from which the settlement offer was made.[1]

[1]        Haddon v Forsyth (No 2) [2011] NSWSC 693, at paragraph [4]

32Relevant factors which the Court may consider when assessing reasonableness of the settlement offer were articulated in Rayney v Reynolds (No 4)[2] as being:

(a)   The stage of the proceedings when the offer was received;

(b)   The time allowed for the plaintiff to consider the offer;

(c)   The plaintiff’s prospects of success, assessed as at the date of the offer;

(d)   The clarity with which the terms of the offer were expressed; and

(e)   Whether the offer foreshadowed an application for indemnity costs in the event that the plaintiff rejected it.

[2] [2022] WASC 360, at paragraph [294]

33An offer to apologise or publish a correction may also be relevant to assessing whether the settlement offer was reasonable.

Findings

34I reject Mr Laing’s assertion that Ms Bibby could have settled the matter at the outset by offering a simple apology. The offer made to Ms Bibby before the commencement of proceedings was to apologise, pay Mr Laing’s costs to date and formulate an appropriate offer of amends.  Mr Laing did not, and has never, specified the amount he was seeking in damages.

35In those circumstances I do not consider it is open to Mr Laing to argue that Ms Bibby failed to accept a reasonable offer of settlement.  Although Mr Laing asserted in court that he would not have issued proceedings had Ms Bibby offered an apology, no such offer was ever communicated to Ms Bibby.

36In terms of the prospects of success, Mr Laing did not articulate how the publications caused serious harm to his reputation.  His contract with The Park Apartments building was not terminated, nor did he particularise publication to more than 4 people.    

37There was a real risk that, if Mr Laing could only prove publication of each matter to four people, and those four people who had the power to terminate The Park Apartment’s contract with Mr Laing had not done so, he would not be able to establish serious harm to reputation.

38Ms Bibby’s offer of an apology and correction email amounted to an offer that was more than a mere demand for capitulation.  I am satisfied that it was a reasonable offer having regard to the very limited extent of the publication, the rejection of which requires the Court to award costs on an indemnity basis unless the interests of justice otherwise require.

Do the interests of justice require an order other than for indemnity costs?

39Mr Laing never responded to that offer, and did not formulate any counteroffer, having previously merely invited Ms Bibby to make an “appropriate offer of amends”.

40Ms Bibby could not be expected to bid against herself.

41Ms Bibby acted appropriately in seeking further and better particulars. The particulars sought were crucial to a fundamental aspect of the case Ms Bibby  sought to defend, being the question of whether Mr Laing would be able to make out his claim for serious harm.

42Mr Laing’s conduct in failing to respond to correspondence from Ms Bibby and failing to provide further and better particulars meant Ms Bibby incurred further costs, including  the cost of filing a summons, briefing counsel and attending the hearing of the application on 7 November 2024.

43Had Mr Laing corresponded with Ms Bibby about his intention to capitulate, some or all of those costs could have been avoided.

44As there was no such correspondence, Ms Bibby took appropriate steps to prepare her application and to assist the Court.

45Subsequently Mr Laing again failed to respond to a reasonable offer of Ms Bibby to settle the costs dispute. This has resulted in Ms Bibby incurring additional costs in briefing counsel and preparing for this costs hearing.

46Therefore I am not persuaded that the interests of justice require that an order other than for indemnity costs is warranted.  In particular I note that Ms Bibby has been drawn into litigation in which she has incurred significant costs by complying with court orders and taking appropriate and necessary steps in response to the claim made by Mr Laing.

47It was open to Mr Laing at all times, particularly once he reached the decision that he would not pursue the matter because of the financial burden it placed on him, to engage with Ms Bibby’s lawyers to resolve the matter and to minimise any additional costs she incurred.  He chose not to do so.

48If I am incorrect in my assessment that Mr Laing acted unreasonably in not accepting Ms Bibby’s offer, and therefore the provisions of section 40 are not enlivened, I am satisfied that the circumstances of this case and the conduct of Mr Laing, set out above, makes it appropriate that he pay Ms Bibby’s costs of the proceeding, including the costs of today, on an indemnity basis.

49I accept the submission of counsel that a fixed sum costs order is appropriate. There is a history of non-response from Mr Laing to correspondence from Ms Bibby which, if it were to continue, would likely increase Ms Bibby’s costs.  A taxation of costs by the Costs Court would also likely increase the costs incurred and delay the final resolution of the matter.

50I have reviewed the Affidavit  of Beth Marsh dated 17 January 2025 setting out the costs incurred, noting that both the fee which she charged and the fees charged by Counsel are below the County Court costs scale.  I am satisfied in all the circumstances that those costs are reasonable and were reasonably incurred.

51Accordingly I order that Mr Laing pay Ms Bibby’s costs in the sum of  $36,386.