Roberts v Prendergast

Case [2013] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

Roberts v Prendergast [2013] QCA 89

PARTIES:

SHANE GAVIN ROBERTS
(appellant)
v
TREVOR PAUL PRENDERGAST
(respondent)

FILE NO/S:

Appeal No 5592 of 2012
SC No 7567 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 15 March 2013
Further Order delivered 19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Chief Justice and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, Fraser and Gotterson JJA concurring as to the order made, Chief Justice dissenting

ORDER:

Appellant to pay the respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was dismissed – where the undisturbed judgment was for the amount of $54,375 comprised of $50,000 general damages for defamation and interest thereon of $4,375 – where the respondent to the appeal made an offer to settle which was rejected prior to the hearing of the appeal for the amount of $29,999 inclusive of interest plus costs on the standard basis – where this offer was made purporting to be pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 – where the provisions of Chapter 9 Part 5 relating to offers to settle do not apply to proceedings in the Court of Appeal – where the document containing the offer was not headed “without prejudice” – where the document did not state that the respondent reserved the right to rely on it on the issue of costs – whether this document containing the offer could be characterised as a Calderbank offer for the purposes of being awarded costs on the indemnity basis

Defamation Act 2005 (Qld), s 40
Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(d)

Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333; [1976] Fam 93, considered
Commonwealth of Australia v Gretton [2008] NSWCA 117, cited
Deepcliffe Pty Ltd v The Council of the City of Gold Coast & Anor [2001] QCA 396, cited
Grice v State of Queensland[2005] QCA 298, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, cited
Kendell v Kendell[2005] QCA 390, cited
Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68, followed
Oversea-Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351, cited
Tamwoy v Solomon [1996] 2 Qd R 93; [1995] QCA 447, followed
Tector v FAI General Insurance Company Ltd [2001] 2 Qd R 463; [2000] QCA 426, cited
Valleyfield Pty Ltd v Primac Ltd & Anor[2003] QCA 398, considered
Velvet Glove Holdings Pty Ltd v Mount Isa Mines Ltd[2011] QCA 312, cited
Wright & Anor v Keenfilly Pty Ltd & Anor[2007] QCA 148

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AGLC
Roberts v Prendergast [2013] QCA 89
Case
[2013] QCA 89
Decision Date

CaseChat Overview and Summary

The appeal in Roberts v Prendergast arose from a defamation case where the respondent, Prendergast, successfully sued the appellant, Roberts, for $54,375. This amount included $50,000 in general damages for defamation and interest of $4,375. After the trial but before the appeal hearing, Prendergast made an offer to settle for $29,999, which included interest and costs on the standard basis. This offer was made under the guise of a provision in the Uniform Civil Procedure Rules 1999; however, it was noted that the relevant provisions did not apply to the Court of Appeal. The offer was not labelled “without prejudice,” and it did not explicitly reserve the right to rely on it for costs. The central issue before the court was whether this offer could be considered a Calderbank offer, which would entitle the respondent to costs on an indemnity basis.

The court examined whether the offer made by Prendergast could be regarded as a Calderbank offer, which would allow the respondent to seek costs on an indemnity basis. The court noted that the offer did not meet the criteria set out for such an offer, as it was not marked “without prejudice” and did not explicitly reserve the right to use it for costs. The court concluded that the offer could not be classified as a Calderbank offer, and therefore, the respondent was not entitled to costs on an indemnity basis. The appeal was dismissed, and the original judgment was upheld.

In light of the dismissal of the appeal, the court ordered that the appellant, Roberts, pay the respondent's costs of the appeal on the standard basis. The court did not find merit in the appellant's arguments and thus ruled that the respondent was entitled to recover the costs of the appeal as per the standard basis. The judgment reinforced the procedural requirements for offers to settle and their implications for costs in appellate proceedings.

Orders

Orders of the court

Appellant to pay the respondent’s costs of the appeal on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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