Naudin-Dovey v Naudin - [2013] QDC 153

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…

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: [2013] QDC 153
Decision Date: 11 July 2013

CaseChat Overview and Summary

The case of Naudin-Dovey v Naudin involved a defamation claim brought by the plaintiff against the second defendants. The plaintiff sought indemnity costs for the proceedings, which were assessed on the standard basis, excluding certain costs, following a judgment in their favour. The second defendants had made three offers of settlement which were rejected by the plaintiff. Additionally, the plaintiff had made an offer to settle, which was not accepted by the second defendants. The court was required to determine whether the second defendants unreasonably failed to make or accept an offer of settlement and whether the interests of justice required assessment of costs on the standard basis.

The legal issues before the court were whether the second defendants unreasonably failed to make or accept an offer of settlement and whether the interests of justice required the assessment of costs on the standard basis. The court considered the offers of settlement made by both parties and the circumstances surrounding the rejection of those offers. The court also considered the costs incurred by the plaintiff in relation to the proceedings and the various interlocutory hearings conducted.

The court found that the second defendants had unreasonably failed to make or accept an offer of settlement. The court also found that the interests of justice required the assessment of costs on the standard basis. The court awarded the plaintiff costs of and incidental to the proceedings, assessed on the standard basis against the District Court scale of fees, if not otherwise agreed. The court excluded certain costs from the order, including the plaintiff’s costs of the proceedings in so far as they related to her claim against the first defendant, the costs of amending her claim and statement of claim, the costs of an application heard by Justice Mullins, and the costs reserved by Justice Douglas. The second defendants were also 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.

The final orders of the court were that the second defendants must pay the plaintiff’s costs of and incidental to the proceedings, excluding the costs specified in the order, assessed on the standard basis against the District Court scale of fees, if not otherwise agreed. The costs awarded by order 1 did not include certain specified costs. The second defendants were also 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.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.