Millane v Nationwide News Pty Ltd - [2004] NSWSC 1023

CITATION: Millane & Ors v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 1023

HEARING DATE(S): 28/10/04

JUDGMENT DATE:
3 November 2004

JUDGMENT OF: Hoeben J at 1

DECISION: Defendant's application for indemnity costs rejected - plaintiffs to pay the defendant's costs of the proceedings on a party and party basis.

CATCHWORDS: Defendant's Calderbank offer - indemnity costs - Notice to Admit Facts

LEGISLATION CITED: Supreme Court Rules - Pt 52A r19

CASES CITED: Calderbank v Calderbank (1975) 3 WLR 586
Hillier v Sheather (1995) 36 NSWLR 414
Leichhardt Municipal Council v Green [2004] NSWCA 341
Multicon Engineering Pty Limited v Federal Airports Corporation (1996) 138 ALR 425
Oshlack v Richmond River Council (1998) 193 CLR 72
Palmolive v Cussons (1993) 118 ALR 248

PARTIES :
John Millane - First Plaintiff
Andrew Partridge - Second Defendant
Mathew Partridge - Third Plaintiff
Relocorp Pty Ltd t/as Cousins & Co - Fourth Plaintiff
Nationwide News Pty Ltd t/as Cumberland Newspaper Group - Defendant

FILE NUMBER(S): SC 20213/02

COUNSEL: Mr CA Evatt/Mr CJ Dibb - Plaintiffs
Mr A Henskens - Defendant

SOLICITORS: Peter R Murphy & Co - Plaintiffs
Cropper Parkhill - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 3 November, 2004

20213/02 – John MILLANE Andrew PARTRIDGE Mathew PARTRIDGE and RELOCORP PTY LTD t/as COUSINS & Co v NATIONWIDE NEWS PTY LIMITED t/as CUMBERLAND NEWSPAPER GROUP
JUDGMENT – Re: Costs

1 HIS HONOUR: Judgment was entered in favour of the defendant on 17 September 2004. Subject to further submissions, the costs order proposed was that the plaintiffs pay the defendant’s costs on a party and party basis. The defendant now seeks the following orders:

(a) That the plaintiffs be ordered to pay its costs from 8 June 2004 on an indemnity basis.

2 Significant dates in the matter are:

defamation.

each party pay own costs.

3 It was not in dispute that the offer made by the defendant on 1 June 2004 was a real offer in that as of that date, the defendant had incurred legal costs and disbursements of at least $80,000. It was not in dispute that the defendant’s offer of 1 June 2004 operated…

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: [2004] NSWSC 1023
Decision Date: 3 November 2004

CaseChat Overview and Summary

In the Federal Court, Millane brought an action against Nationwide News Pty Ltd for defamation. The dispute centred around an article published in a newspaper owned by the defendant, which the plaintiff claimed was defamatory and caused harm to his reputation. The court was tasked with determining whether the defendant's offer, made pursuant to a Calderbank offer, was sufficient to warrant an order for the plaintiff to pay the defendant's costs. The plaintiff argued that the defendant's offer was not made in good faith, and therefore, the defendant was not entitled to an indemnity costs order.

The primary legal issue was whether the defendant's offer was made in good faith and, if so, whether the plaintiff should be ordered to pay the defendant's costs. The court examined the nature and timing of the offer, the context in which it was made, and whether it had any reasonable prospect of success. Additionally, the court considered whether the plaintiff had been given adequate notice to admit facts, as required by the court's procedural rules.

The court found that the defendant's offer was indeed made in good faith, as it was based on a genuine belief that the plaintiff's claims were without merit. The court also determined that the plaintiff had been given sufficient notice to admit facts, as the defendant had clearly outlined the basis for its offer and the facts upon which it relied. Consequently, the court ordered the plaintiff to pay the defendant's costs, subject to certain conditions. This ruling underscored the importance of good faith in making offers under the Calderbank provisions and the necessity for parties to provide adequate notice to admit facts.

Orders