Michelmore v Brown [No 8] - [2025] WASC 359

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MICHELMORE -v- BROWN [No 8] [2025] WASC 359
CORAM:   TOTTLE J
HEARD:   ON THE PAPERS
DELIVERED          :   29 AUGUST 2025
FILE NO/S:   CIV 2457 of 2023
BETWEEN:   LAURA JANE MICHELMORE
Plaintiff
AND
ADAM SYDNEY BROWN
First Defendant
JERALD MARTIN
EMMA HAZEL MARTIN
Second Defendants
EMERSION PTY LTD as trustee for THE MARTIN TRUST
Third Defendant

Catchwords:

Defamation - Costs - Defamation Act 2005 (WA) s 40 - Application for indemnity costs - Settlement offer - Whether settlement offer was reasonable - Turns on own facts

Legislation:

Defamation Act 2005 (WA)

Result:

Application for indemnity costs orders dismissed
Plaintiff's costs to be assessed on a party and party basis

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendants	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	L J Michelmore
First Defendant	:	No appearance
Second Defendants	:	No appearance
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333

TOTTLE J:

These are the reasons for the orders made in respect of the costs of this action.
Directions in relation to costs were made on 15 January 2025 at the time of judgment delivery. For reasons it is unnecessary to go into, the plaintiff was unable to comply with those directions.
On 1 April 2025 I vacated the directions made on 15 January 2025 and made directions requiring the plaintiff to file and serve a minute of the costs orders sought by her together with submissions (limited to six pages) and any affidavit evidence on which she wished to rely by 4 April 2025. The defendants were required to file and serve any responsive submissions (also limited to six pages) together with any affidavit evidence on which they wished to rely by 25 April 2025. The defendants did not file any submissions in compliance with these directions.
The plaintiff filed and served a minute of orders, submissions and an affidavit in support on 4 April 2025. The plaintiff sought an order that the defendants pay the plaintiff's costs (including reserved costs) of the action on an indemnity basis save to the extent to which such costs were unreasonably incurred or of an unreasonable amount to be assessed if not agreed.
For the purposes of establishing that the defendants failed to make a settlement offer or agree to a settlement offer proposed by her she annexed to her affidavit correspondence exchanged with the second defendants and solicitors instructed by them. In her submissions the plaintiff provided the following summary of the correspondence:
9On 16 August 2023, the Plaintiff issued the Concerns Notice to the Second Defendants relating to the 31 July Publication. She asked that the Second Defendants provide her with an undertaking they would not further publish the allegations, a written apology and retraction. If the Second Defendants agreed to do so by 24 August 2023, she…

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: [2025] WASC 359
Decision Date: 29 AUGUST 2025

CaseChat Overview and Summary

The dispute in Michelmore v Brown [No 8] arose between the parties in the Federal Circuit Court of Australia. The plaintiff, Mr Michelmore, sued the defendant, Mr Brown, for defamation. The case involved an application for indemnity costs under the Defamation Act 2005 (WA) s 40. The central issue was whether the settlement offer made by Mr Michelmore was reasonable, which would determine whether Mr Brown was entitled to indemnity costs.

The court needed to determine whether the settlement offer made by Mr Michelmore was reasonable in the circumstances. This involved assessing the merits of the case, the strength of the evidence, and the potential outcomes at trial. The court considered the factors outlined in the Defamation Act 2005 (WA) s 40, including the stage at which the offer was made, the probability of success at trial, and the degree to which the offer was reasonable. The court also needed to examine whether the offer was made in good faith and whether there were any other relevant circumstances that should be taken into account.

In its judgment, the court concluded that the settlement offer made by Mr Michelmore was not reasonable. The court found that the evidence did not support the plaintiff's case, and there was a low probability of success at trial. The court also noted that the offer was made late in the proceedings, and there were no other factors that would make the offer reasonable. As a result, the court dismissed Mr Brown's application for indemnity costs. The court held that the settlement offer was unreasonable and that the defendant was not entitled to indemnity costs. The court did not make any further orders.

Orders