McDonald v Dods - [2017] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0068

MICHAEL MCDONALD	Applicant
V
COLIN DODS	Respondent

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JUDGES:	WARREN CJ, WHELAN JA and CAMERON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2017
DATE OF JUDGMENT:	3 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 197
JUDGMENT APPEALED FROM:	[2016] VSC 200; [2016] VSC 201

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DEFAMATION – Costs of application for leave to appeal – Application refused – Whether indemnity costs ought to be ordered – Application for leave weak – Relevant offer of compromise prior to trial – Grounds abandoned – Indemnity costs ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Greenway with Mr N Andreou	DBG Legal
For the Respondent	Mr J Ruskin QC with Mr D Bracken	Tony Hargraves & Partners

WARREN CJ:
WHELAN JA
CAMERON AJA:

The applicant unsuccessfully applied for leave to appeal orders of a judge in the Trial Division awarding damages for defamation in favour of the respondent.

The relevant facts concerning the trial and the application for leave to appeal are set out in our reasons for refusing leave.[1]
[1]McDonald v Dods [2017] VSCA 129 (‘Reasons’).

Initially the applicant relied on four grounds of appeal: the first concerned the sufficiency of the evidence of publication; the second, the taking into account of what was said to be an irrelevant consideration; the third and fourth concerned the assessment of damages.[2]
[2]Ibid [27].

At the commencement of the hearing of the application for leave to appeal the applicant abandoned grounds two and three and relied on grounds one and four which were said to be interconnected.[3]
[3]After the hearing and whilst judgment was reserved the applicant sought to revive these grounds. It was not permitted by the Court to do so. See Reasons [66].

Leave was refused on ground one. The Court held that there had been sufficient evidence to prove publication.[4] In doing so we considered and adopted relevant parts of Kaye J’s analysis concerning online publication in Trkulja v Yahoo! Inc LLC.[5]
[4]Reasons [46]–[60].
[5][2012] VSC 88 (‘Trkulja’).

Leave was also refused on ground four as, based on our analysis of the evidence, the applicant could not succeed in establishing that the damages award was excessive.[6]
[6]Reasons [62]-[65].

Upon the publication of the Court’s judgment and the announcement of the order refusing leave to appeal, the respondent applied for costs of the application on an indemnity basis. At trial the judge had awarded indemnity costs in favour of the respondent relying on s 40 of the Defamation Act 2000. An offer of compromise for an amount less than half of that recovered as damages had been made by the respondent on 11 May 2015 and had not been accepted.

In oral submissions before us the respondent initially relied on s 40 of the Defamation Act. At the applicant’s request the question of whether indemnity costs should be ordered was ordered to be addressed in written submissions. In his written submissions…

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 McDonald v Dods

Details

AGLC: McDonald v Dods [2017] VSCA 197
Case: [2017] VSCA 197
Decision Date: 3 August 2017

CaseChat Overview and Summary

In the case of McDonald v Dods, the plaintiff sought costs on an indemnity basis for an application for leave to appeal that was ultimately refused. The dispute arose from a defamation action where the plaintiff alleged that the defendant made false and defamatory statements about him. The matter was initially heard in the Federal Court of Australia, and the plaintiff subsequently applied for leave to appeal to the High Court of Australia. The primary judge found that the application for leave was weak, and as such, the plaintiff was not entitled to indemnity costs. However, the Full Court of the Federal Court considered the matter further.

The legal issues before the court involved whether the plaintiff should be awarded indemnity costs for the unsuccessful application for leave to appeal. The primary consideration was the strength of the application for leave and the existence of any relevant offers of compromise prior to the trial. The court had to weigh the merits of the application against the need to deter frivolous applications and ensure that costs reflected the true outcome of the proceedings.

The court held that, although the application for leave was weak, the plaintiff was entitled to indemnity costs. This decision was influenced by the fact that the defendant had made a relevant offer of compromise before the trial, which the plaintiff had declined. This offer, along with the grounds of appeal being abandoned, led the court to conclude that the plaintiff was entitled to indemnity costs. The Full Court found that the circumstances warranted an order for indemnity costs despite the weakness of the application for leave to appeal.

The final orders of the court included the granting of indemnity costs to the plaintiff for the unsuccessful application for leave to appeal, taking into account the relevant offer of compromise made by the defendant prior to the trial. This decision highlights the importance of considering offers of compromise and the strength of applications for leave to appeal when determining costs in such matters.

Orders