Naudin-Dovey v Naudin
[2013] QDC 153
•11 July 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Naudin-Dovey v Naudin & Ors [2013] QDC 153
PARTIES:
Mandy Naudin-Dovey
(Plaintiff)
v
&
Maree Louise James & Elizabeth Bingham trading as Catbird Media
(Second Defendants)
FILE NO/S:
1464/12
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court in Brisbane
DELIVERED ON:
11 July 2013
DELIVERED AT:
Brisbane
HEARING DATE:
10 December 2012 & 29 May 2013, final submissions on costs received on 4 July 2013
JUDGE:
Kingham DCJ
ORDER:
The second defendants must pay the plaintiffs costs of and incidental to the proceedings, excluding the costs specified below, assessed on the standard basis against the District Court scale of fees, if not otherwise agreed.1.
The costs awarded by order 1 do not include:2.
The plaintiff’s costs of the proceedings in so far as they relate to her claim against the first defendant;(a)
The plaintiff’s costs of and incidental to amending her Claim and Statement of Claim on 4 February 2011 and 4 October 2011;(b)
The plaintiff’s costs of and incidental to the application heard by Justice Mullins on 27 September 2011; and(c)
The plaintiff’s costs reserved by Justice Douglas on 2 April 2012.(d)
The second defendants are permanently restrained from republishing the matter complained of and any of the imputations found by the Court to be carried by the matter complained of and concerning the plaintiff.3.
CATCHWORDS:
DEFAMATION – COSTS – INDEMNITY COSTS – DEFAMATION ACT 2005 (QLD) - where judgment was entered for the plaintiff – where the plaintiff applied for an order that costs be assessed on an indemnity basis pursuant to s 40(2)(a) Defamation Act 2005 (Qld) – where the second defendants had made three offers of settlement – where the second defendants had failed to accept the plaintiff’s offer to settle - whether the second defendants unreasonably failed to make or accept an offer of settlement - whether the interests of justice would require assessment of costs on the standard basis.
DEFAMATION – COSTS – where the plaintiff succeeded at trial against the second defendants - where proceedings could not continue against the first defendant –where various interlocutory hearings were conducted – where costs follow the event - whether certain costs should be excluded from the order of this court.
Defamation Act 2005 (Qld) s 40(2)(a).
Uniform Civil Procedure Rules 1999 (Qld) r 692.
Davies v Nationwide News Pty Ltd [2008] NSWSC 946, applied.
COUNSEL:
Ms. S. Chrysanthou for the Plaintiff.
Mr. M. Healy for the Second Defendant.
SOLICITORS:
Goldsmiths Lawyers for the Plaintiff.
Law Essentials for the Second Defendant.
On 29 May 2013 I made orders in favour of the plaintiff and gave the parties leave to make written submissions on costs and injunctive orders. On 4 July 2013 those submissions were finalised.
Injunctive order
Dealing, firstly, with the injunction, the parties agree that an order should be made in the following terms:
The second defendants are permanently restrained from republishing the matter complained of and any of the imputations found by the Court to be carried by the matter complained of and concerning the plaintiff.
That order reflects the reasons for judgment in favour of the plaintiff and I make that order by consent. In so doing, I acknowledge the submissions by counsel for the second defendants that they destroyed all copies of the publication in their possession or control and did not further publish the material after they were served with the claim.
Should costs be awarded on an indemnity basis?
Turning to costs, the plaintiff’s primary application is for an order the second defendants pay costs on an indemnity basis, pursuant to s 40(2)(a) of the Defamation Act 2005. The effect of that section is that, unless the interests of justice require otherwise, the court must award costs on an indemnity basis if:
(a) The plaintiff succeeds in the proceedings and costs are to be awarded in the plaintiff’s favour; and
(b) The defendant has unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.
The plaintiff has succeeded and costs will follow the event. However, I am not satisfied the second defendants have unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.
Unlike the settlement provisions of the UCPR, the focus of s 40(2)(a) is on the parties’ conduct in the negotiations, not the amount offered. In applying that provision to the facts in this case, I have had regard to Justice McClellan’s interpretation of s40(2) in Davies v Nationwide News Pty Ltd [2008] NSWSC 946. Respectfully, I concur with and adopt his Honour’s interpretation that s 40(2) obliges parties to defamation proceedings to take a reasonable approach to negotiations for the settlement of proceedings.
The second defendants made three offers to settle. The first offer was that the parties walk away bearing their own costs. It involved no true compromise, coming at a late stage of proceedings when significant costs would have been incurred. The plaintiff then offered to settle for $75,000, $10,000 more than I ultimately awarded.
The second defendants then made two further offers to settle, the second offered damages of $7,500, the third an amount of $15,000. That last offer was made on 30 March 2012. I accept those offers were genuine attempts to engage in settlement negotiations. After that, the comments of two judges made in interlocutory proceedings in the Supreme Court and District Court have a bearing on my assessment of the reasonableness of the second defendant’s conduct in not making any further settlement offers.
In the Supreme Court, Justice Douglas made the observation that the award of damages was likely to be very low when he transferred the proceedings from the Supreme Court to the District Court. I accept counsel’s submissions that Judge Botting also considered the damages claimed by the plaintiff well exceeded what she could expect to receive if she was successful. The second defendants would have been influenced by those observations, albeit they related to the claim made (at that time $150,000) not the plaintiff’s offer to settle for half that amount.
Given those observations, however, I am not persuaded that it was unreasonable for the second defendants to make no further settlement offers.
Even if I am wrong in my assessment of the second defendants’ conduct with respect to settlement, I consider the interests of justice require an award of costs on the standard basis.
Although the plaintiff was successful in her claim for damages, she failed to make out 6 of the 14 imputations. Although her counsel described the defence as misconceived, that was not so for almost half of the imputations pleaded. It was not a wholly unmeritorious defence.
Further, these proceedings were instigated, in my view unnecessarily, in the Supreme Court. The claim was always within the jurisdictional limit of this court. Upon the defence being filed, it was clear the case involved no difficult questions of law and turned on the meaning of the publication and, if defamatory, the assessment of damages.
As early as August 2011, the solicitors for the second defendants urged the plaintiff to transfer the matter to another jurisdiction, preferably the Magistrates Court. When the matter came on for trial before Justice Douglas, he transferred the matter to the District Court on his own motion. At that time, the damages claimed were $150,000, then within the jurisdiction of the Magistrates Court.
The transcript of the hearing before Justice Douglas reveals he considered transferring the matter to the Magistrates Court. He was unsure about his power to remit the matter to that court for hearing on his own motion. He also accepted the District Court was the more appropriate forum given the damages claim was at the top end of the jurisdictional limit of the Magistrates Court and given the apparent absence of jurisprudence in that court on the Defamation Act.
I am satisfied unnecessary costs were incurred as a result of the plaintiff’s decision to maintain its proceedings in the Supreme Court, in the face of the second defendants’ request the matter was transferred to another forum.
In summary, I do not consider the second defendants were unreasonable in their approach to settlement negotiations, but even if they were, I consider the interests of justice require an award on the standard basis.
Should any costs be excluded from the award?
The second defendants have argued certain costs should be excluded from an award of costs in the plaintiffs favour. They include any costs incurred in the claim against the first defendant. I assume the award sought by the plaintiff relates only to the costs of the proceedings against the second defendant. Any award is properly limited in that way.
The remaining costs related to 4 interlocutory hearings, three in the Supreme Court and one in the District Court.
The first in time was a successful application by the plaintiff for leave to amend her Claim and Statement of Claim on 6 April 2011. Although Rule 692 provides the costs of and caused by amendment are the responsibility of the amending party, that is subject to any order to the contrary. Chief Justice de Jersey ordered the costs of and incidental to the application were the plaintiff’s costs in the proceeding. Given that order, those costs should be included in the plaintiff’s award. However, the costs of other amendments by the plaintiff made on 4 February 2011 and 4 October 2011 will be governed by Rule 692 and excluded from the costs order.
The plaintiff was unsuccessful in her application to dispense with the Certificate of Readiness for Trial. Justice Mullins, who heard the application, made no order as to costs and they should be excluded from calculation of the plaintiff’s costs.
I have already discussed the proceedings before Justice Douglas and Judge Botting. On both occasions, those costs were reserved. In light of the attempts by second defendants to have the plaintiff transfer the matter from the Supreme Court, I consider the costs of that appearance should be excluded. However, the costs of the unsuccessful application before Judge Botting should follow the event and, therefore, be included in the plaintiff’s award.
Accordingly, the costs award excludes:
(a) The costs of the proceedings in so far as they relate to the first defendant;
(b) The plaintiff’s costs of and incidental to amending the Claim and Statement of Claim on 4 February 2011 and 4 October 2011;
(c) The costs and incidental to the application heard by Justice Mullins on 27 September 2011; and
(d) The costs reserved by Justice Douglas on 2 April 2012.
Costs prior to transfer from the Supreme Court
This court has the power to make an order about the costs of the proceedings before removal from the Supreme Court, which can include the scale against which they should be assessed.[1] I award costs assessed on the standard basis against the District Court scale of fees from the date the claim was instituted.
[1] Uniform Civil Procedure Rules R668
Orders
Orders:
1. The second defendants must pay the plaintiffs costs of and incidental to the proceedings, excluding the costs specified below, assessed on the standard basis against the District Court scale of fees, if not otherwise agreed.
2. The costs awarded by order 1 do not include:
(a) The plaintiff’s costs of the proceedings in so far as they relate to her claim against the first defendant;
(b) The plaintiff’s costs of and incidental to amending her Claim and Statement of Claim on 4 February 2011 and 4 October 2011;
(c) The plaintiff’s costs of and incidental to the application heard by Justice Mullins on 27 September 2011; and
(d) The plaintiff’s costs reserved by Justice Douglas on 2 April 2012.
3. The second defendants are permanently restrained from republishing the matter complained of and any of the imputations found by the Court to be carried by the matter complained of and concerning the plaintiff.
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