Manefield v Child Care NSW (No 2) - [2011] NSWSC 104

Supreme Court

New South Wales

Medium Neutral Citation: Manefield v Child Care NSW (No 2) [2011] NSWSC 104
Hearing dates: 7 February 2011
Decision date: 08 March 2011
Jurisdiction: Common Law
Before: Kirby J
Decision:
Defendant to pay the plaintiff's costs on an indemnity basis from the commencement of the action

Catchwords: COSTS - Indemnity costs application - Concerns notice under the Defamation Act before litigation, identifying imputations - Settlement offers - s 40 Defamation Act 2005 - Whether defendant unreasonably failed to make or accept offer
Legislation Cited: Defamation Act 2005
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005
Defamation Act 1974
Cases Cited: Manefield v Child Care NSW [2010] NSWSC 1420
Channel Seven Sydney Pty Ltd v Mahommed (No 2) [2011] NSWCA 6
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Timms v Clift [1998] 2 Qd R 100
Roache v News Group Newspapers Ltd [1992] TLR 551
Assaf v Skalkos [2000] NSWSC 935
Skalkos v Assaf (No 2) [2002] NSWCA 236
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Justice M J Beazley, "Calderbank Offers" (2009) Summer 2008/2009 Bar News 65
Category: Costs
Parties: Bruce Manefield (Plaintiff)
Association of Quality Child Care Centres of NSW Incorporated trading as Child Care NSW (Defendant)
Representation: Counsel:
Mr R de Meyrick (Plaintiff)
Mr J S Wheelhouse SC (Defendant)
Solicitors:
Paris J Carr & Associates (Plaintiff)
Guild Legal Limited (Defendant)

File Number(s): 2009/297613

Judgment

On 15 December 2010 Mr Bruce Manefield (the plaintiff) was awarded $150,000 dollars damages plus costs in an action for defamation against Child Care NSW (the defendant) ( Manefield v Child Care NSW [2010] NSWSC 1420 ). On 7 February 2011 an application was made pursuant to s 40 of the Defamation Act 2005 that such costs be assessed on an indemnity basis. That section is in these terms:

40 Costs in defamation proceedings

(1) In awarding costs in defamation proceedings, the court may have regard to:

(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), and

(b) any other matters that the court considers relevant.

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):

(a) 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 proceedings 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, or

(b) ...

(3) In this section:

settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings…

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.

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Details

Case: [2011] NSWSC 104
Decision Date: 08 March 2011

CaseChat Overview and Summary

In the case of Manefield v Child Care NSW (No 2), the plaintiff sought indemnity costs from the defendant under the Defamation Act 2005. The plaintiff, Manefield, had previously issued defamation proceedings against the defendant, Child Care NSW, alleging defamation in a notice sent to her by the defendant. The proceedings were settled prior to trial, and Manefield subsequently sought indemnity costs from Child Care NSW. The primary issue before the court was whether Child Care NSW unreasonably failed to make or accept a settlement offer, which would entitle Manefield to an indemnity costs order under section 40 of the Defamation Act.

The court examined the relevant provisions of the Defamation Act, which require a party to a defamation proceeding to give notice of the imputations before litigation and to consider and respond to any reasonable settlement offers made. The court considered whether Child Care NSW had reasonably failed to make or accept a settlement offer. The court found that Child Care NSW had failed to make a settlement offer, and that Manefield had made a reasonable offer that Child Care NSW had unreasonably failed to accept. The court concluded that Child Care NSW unreasonably failed to make or accept a settlement offer, and that Manefield was therefore entitled to an indemnity costs order under section 40 of the Defamation Act.

The court ordered Child Care NSW to pay Manefield's costs of the indemnity costs application, as well as a proportion of the costs of the original defamation proceedings. The court also noted that the indemnity costs order was not intended to be punitive, but rather to provide a remedy for the unreasonable failure to make or accept a settlement offer. The court's decision in this case highlights the importance of parties to defamation proceedings considering and responding to reasonable settlement offers, and the potential consequences of failing to do so.

Orders