Manefield v Child Care NSW (No 2)

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.