Reynolds v Higgins - [2025] WASC 345 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   REYNOLDS -v- HIGGINS [2025] WASC 345 (S)
CORAM:   TOTTLE J
HEARD:   ON THE PAPERS
DELIVERED          :   9 SEPTEMBER 2025
FILE NO/S:   CIV 1840 of 2023
BETWEEN:   LINDA KAREN REYNOLDS
Plaintiff
AND
BRITTANY MAE HIGGINS
Defendant

Catchwords:

Defamation - Costs - Whether costs should be assessed on an indemnity basis - Defamation Act 2005 (WA), s 40(2) - Defendant unreasonably failed to make a settlement offer - Whether in the interests of justice not to award indemnity costs - Conduct of party's case - Where action not successful on all causes of action - Defendant ordered to pay 80 percent of plaintiff's costs on an indemnity basis

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Defamation Act 2005 (WA)

Result:

Costs orders made

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Ms Carmel Galati

Case referred to in decision:

Reynolds v Higgins [2025] WASC 345

TOTTLE J:

Introduction

These reasons concern the costs orders to be made following the delivery of judgment in this action.[1]
[1] Reynolds v Higgins [2025] WASC 345.
The plaintiff proposes the following orders:
1Pursuant to section 40(2)(a) of the Defamation Act 2005 (WA), alternatively section 40(1)(a), the defendant pay the plaintiff's costs of the action on an indemnity basis, save to the extent that such costs were unreasonably incurred or of an unreasonable amount, to be assessed unless agreed.
2.In the alternative to order 1, the defendant pay the plaintiff's costs of the action, to be assessed if not agreed, with such costs to be assessed:
2.1without regard to the hourly rates or limits imposed by the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 and the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024; and
2.2with allowance for the attendance at trial of:
2.2.1Counsel;
2.2.2Two instructing solicitors;
2.2.3A restricted practitioner; and
2.2.4A paralegal.
The defendant proposes the following orders:
1.The defendant pay two thirds of the plaintiff's costs of the action, to be assessed if not agreed.
2.The assessment of the plaintiff's costs is to be done on a party‑party basis capped by the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA) and Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) save for as follows in order 3.
3.Pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA):
(a)without regard to the limits imposed in Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) with respect to trial preparation (items 19 and 22);
(b)on the basis of the maximum allowable hourly rate for Martin Lawrence Bennett be increased only to $781 per hour (inclusive of GST).
4.Under s 15 of the Civil Judgments Enforcement Act 2004 (WA), and until further order, orders 1 to 3 are suspended until the Federal Court proceedings WAD 121 of 2025 are concluded (meaning orders resolving the action have…

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.

Continue reading Reynolds v Higgins

Details

AGLC: Reynolds v Higgins [2025] WASC 345 (S)
Case: [2025] WASC 345 (S)
Decision Date: 9 SEPTEMBER 2025

CaseChat Overview and Summary

The case of Reynolds v Higgins involved a dispute over defamation, with the plaintiff, Reynolds, seeking damages from Higgins for defamatory statements made. The matter was heard in the Supreme Court of Western Australia. The primary legal issue before the court was whether the costs incurred by Reynolds should be assessed on an indemnity basis. This issue arose under section 40(2) of the Defamation Act 2005 (WA), which permits the court to order indemnity costs if a party unreasonably fails to make a settlement offer. The court had to determine if such an order would be in the interests of justice, particularly in light of Reynolds' partial success in the proceedings.

In assessing the matter, the court considered the conduct of both parties throughout the litigation. Higgins was found to have unreasonably failed to make a settlement offer, which warranted an assessment of indemnity costs. However, given that Reynolds did not succeed on all causes of action, the court exercised its discretion to order that Higgins pay 80 percent of Reynolds' costs on an indemnity basis, rather than the full indemnity. The court concluded that this partial indemnity cost order balanced the need to discourage unreasonable refusal to settle with the realities of partial success in litigation.

The Supreme Court's decision thus recognised the importance of settlement offers in defamation cases, while also taking into account the nuances of partial success. By ordering a reduced indemnity cost award, the court demonstrated a nuanced approach to cost assessments in complex litigation scenarios. The final order mandated that Higgins pay 80 percent of Reynolds' costs on an indemnity basis, reflecting the balance struck by the court between the principles of deterrence and the practicalities of litigation outcomes.

Orders