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Pinksterboer v Coumi (No 2)

Pinksterboer v Coumi (No 2)

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Case Copied 13 December 2018 41 min read

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PINKSTERBOER & ORS v COUMI & ORS (No 2)
[2018] SADC 136
Judgment of His Honour Judge Beazley
13 December 2018
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS
PRACTICE AND PROCEDURE - COSTS - GENERAL RULE OR STATUTE - WHETHER COSTS FOLLOW THE EVENT
PRACTICE AND PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES
Application by the first, second, and third plaintiffs for costs against the first defendant - where different parties and different causes of action - the first plaintiff succeeded in claim for Defamation against the first defendant in respect of 3 out of 7 pleaded publications allegedly defamatory of him and 1 republication - whether costs to follow the event - whether costs to be determined on an indemnity basis pursuant to s 38 of the Defamation Act 2005 (SA) - the first plaintiff had also claimed damages from second and third defendants for separate allegations, including for Defamation, which claims were compromised prior to trial - the first, second and third plaintiffs claimed relief against first defendant in Nuisance and/or Harassment, which claims were compromised by agreement between those parties save for the question of costs - no further hearing on the merits of the claim in nuisance - whether either party entitled to costs in respect of that claim - where plaintiffs filed a Rules of Court offer in respect of all claims which offer was more favourable to the first defendant than the award of damages in Defamation upon which the first plaintiff alone succeeded - whether solicitor/client costs ought to be awarded to all of the plaintiffs - whether the court has discretion to not order costs on that basis - difficulty in any event in determining whether order for costs pursuant to s 38 of the Defamation Act to the first plaintiff alone is more or less favourable than award for costs under the Rules of Court offer - question of indemnity costs - offers of compromise - filed offer - informal offers - settlement offers under the Defamation Act - Calderbank offer - whether first defendant unreasonably failed to agree to settlement offers proposed by the first plaintiff - the proper exercise of the courts discretion.
Held: Such costs as are awarded, must exclude the costs incurred by the plaintiffs in their claims against the second and third defendants - the court orders that, notwithstanding the plaintiffs' filed offer, each party should bear its own costs of and incidental to the plaintiffs' claims in Nuisance and/or Harassment against the first defendant - while the plaintiffs' filed offer in respect of all of the claims, was more favourable to the first defendant than the quantum of damages awarded to the first plaintiff in the claim for Defamation, and would usually result in an award of solicitor and client costs to the plaintiffs for the whole of the action - that filed offer must be seen in light of the events which…

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: [2018] SADC 136
Decision Date: 13 December 2018

CaseChat Overview and Summary

Pinksterboer v Coumi (No 2) involved multiple plaintiffs pursuing various claims against the first defendant. The first plaintiff succeeded in a defamation claim concerning three out of seven publications. The first plaintiff also had separate claims against other defendants, which were compromised before trial. Additionally, the first, second, and third plaintiffs claimed relief against the first defendant for nuisance and/or harassment, which were also compromised, except for the issue of costs. The plaintiffs filed an offer under the Rules of Court, which was more favourable to the first defendant than the damages awarded for defamation. The court had to determine whether costs should follow the event, whether the costs should be on an indemnity basis, and whether the first defendant unreasonably failed to agree to settlement offers.

The legal issues before the court included whether costs should be awarded based on the outcome of the event or on the conduct of the parties, and whether the court had the discretion to deviate from the general rule of costs following the event. The court also had to consider whether the first defendant unreasonably failed to agree to settlement offers, impacting the exercise of the court's discretion. The court examined the filed offer in the context of subsequent events and the parties' conduct. It concluded that the filed offer, though more favourable to the first defendant, must be considered alongside the compromise of claims against other defendants and the overall conduct of the parties.

The court ruled that the costs awarded should exclude those related to the claims against the second and third defendants. It ordered that each party should bear its own costs for the nuisance and/or harassment claims against the first defendant. While the filed offer would typically result in an award of solicitor and client costs to the plaintiffs for the entire action, the court exercised its discretion to order that the first defendant pay 85% of the first plaintiff's costs of the defamation claim on an indemnity basis, with no other orders regarding costs. This decision balanced the general rule of costs following the event with the court's discretion to consider the conduct of the parties and the overall fairness of the outcome.

Orders