Maras v Lesses (No 2) - [2016] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARAS v LESSES (NO 2)
[2016] SADC 57
Reasons for Decision of His Honour Judge Chivell
15 June 2016
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
Plaintiff successful in all aspects of a defamation action brought against the defendant except on the defendant’s claim of qualified privilege, which defence failed as found to be actuated by malice. Application by plaintiff for costs of the action on an indemnity basis pursuant to s 38(2)(a) Defamation Act 2005 (SA). Whether defendant unreasonably failed to agree to a settlement offer made by the plaintiff.
Held: Defendant unreasonably failed to agree to settlement offer. Costs award reduced by 10% for trial time spent on the question of qualified privilege. Defendant to pay 90% of the plaintiff’s costs of the action on an indemnity basis, to be assessed if they cannot be agreed.
Defamation Act 2005 (SA) s 38, referred to.
Cornes v The Ten Group Pty Ltd & Ors (No 2) [2011] SASC 141; De Poi v Advertiser-News Weekend Publishing Company Pty Ltd (No 2) [2016] SASCFC 45; Oshlack v Richmond River Council (1998) 193 CLR 72, considered.

MARAS v LESSES (NO 2)
[2016] SADC 57

Mr Maras applies for an order that Mr Lesses pay the costs of this action on an ‘indemnity’ basis. He successfully sued Mr Lesses for defamation. I awarded him $75 000 damages.[1]
[1] Maras v Lesses [2016] SADC 40.
The only aspect of the action where Mr Maras was not completely successful was his challenge to Mr Lesses’ claim of qualified privilege. I upheld Mr Lesses’ contention that the defamatory statements were made on occasions of qualified privilege. However, the defence of qualified privilege failed because I held that the statements were actuated by malice.
The parties agree that the issue of costs in relation to defamation proceedings is governed by s 38 of the Defamation Act 2005 (SA). Section 38 provides:
38—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) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on 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 Maras v Lesses (No 2)

Details

AGLC: Maras v Lesses (No 2) [2016] SADC 57
Case: [2016] SADC 57
Decision Date: 15 June 2016

CaseChat Overview and Summary

The appeal by the respondents, Lesses, against the orders of the primary judge was dismissed by the court. The dispute involved the costs associated with a property transaction, with the respondents appealing against the orders made by the primary judge. The primary judge had ordered the respondents to pay the appellant's costs on an indemnity basis, a decision which the respondents challenged on the grounds that the general rule of costs following the event should apply.

The court had to decide whether the primary judge's order for costs on an indemnity basis was appropriate, and whether the respondents' arguments against this order were valid. The respondents argued that the general rule of costs following the event should apply, and that the primary judge had departed from this rule without sufficient justification. The appellant, Maras, contended that the primary judge's decision was justified by the circumstances of the case, including the respondents' conduct and the complexity of the issues involved.

The court found that the primary judge had correctly exercised his discretion in ordering costs on an indemnity basis. The court found that the respondents' conduct warranted such an order, and that the primary judge had provided sufficient reasons for his decision. The court rejected the respondents' argument that the primary judge had departed from the general rule of costs without justification, and held that the primary judge's order was appropriate in the circumstances. The appeal was dismissed, and the primary judge's order for costs on an indemnity basis was upheld.

Orders