Scott v Bodley (No 3)

Case [2023] NSWDC 47

District Court


New South Wales

Medium Neutral Citation: Scott v Bodley (No 3) [2023] NSWDC 47
Hearing dates: 03 March 2023
Date of orders: 08 March 2023
Decision date: 08 March 2023
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1)   The plaintiff is to pay the defendant’s costs of these proceedings on the ordinary basis up to 8 August 2022 and thereafter on an indemnity basis.

Catchwords:

COSTS – defamation proceedings – plaintiff fails to establish serious harm – Calderbank offers and offers to make amends – whether costs should be ordered on an indemnity basis

Legislation Cited:

Civil Dispute Resolutions Act 2011 (Cth)

Civil Procedure Act 2005 (NSW)

Defamation Act 2005 (NSW), ss 10A, 11, 12A, 12B, 18, 40

Federal Court of Australia Act 1976 (Cth), s 43

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Colagrande v Kim (No 2) [2022] FCA 659

Crosby v Kelly (2012) 203 FCR 451

Dutton v Bazzi (No 2) [2021] FCA 1560

Eustice v Channel Seven Adelaide Pty Ltd (No 2) [2020] SASC 35

Georges v Georges; Georges v Georges [2022] NSWDC 558

Hayson v The Age Company Pty Ltd (No 3) 280 FCR 139

Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599

Hennessy v Lynch (No 4) [2008] NSWDC 15

Leichhardt Municipal Council v Green [2004] NSWCA 341

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432

Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672

Nationwide News Pty Ltd v Zoef (No 2) [2017] NSWCA 2

Palmer v McGowan (No 6) (2022) 405 ALR 462

R v Hughes (2000) 202 CLR 535

Re Wakim (1999) 198 CLR 511; (1999) 73 ALJR 839; 163 ALR 270

Scott v Bodley [2022] NSWDC 459

Scott v Bodley (No 2) [2022] NSWDC 651

Stead v Fairfax Media Publications Pty Ltd (2021) 387 ALR 123

Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353

Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284

Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570

Texts Cited:

M Douglas, C Graville and R Carroll in The Evolution and Devolution of the Offer to Make Amends Regime in Australian Defamation Law, 2023 UNSW Law Journal

Category:Costs
Parties: Dale Scott (plaintiff)
Bettina Bodley (defendant)
Representation:

Counsel:
Mr Senior (defendant)

Solicitors:
Somerville Laundry Lomax Solicitors (defendant)
File Number(s): 2022/00202160
Publication restriction: Nil

Judgment

The application before the court

  1. The plaintiff brought proceedings for defamation for publication of an online review critical of his competence as a painter. The review in question was published on the plaintiff’s Google listing as well as his Facebook page for his business, Pottsville Painting Services.

  2. The defendant brought an application for the early resolution of serious harm (s 10A(5) of the Defamation Act 2005 (NSW) (“the Act”…

Continue reading Scott v Bodley (No 3)

Sign in free to access the full text

Details
AGLC
Scott v Bodley (No 3) [2023] NSWDC 47
Case
[2023] NSWDC 47
Decision Date

CaseChat Overview and Summary

The case of Scott v Bodley (No 3) involved a defamation claim brought by the plaintiff against the defendant. The plaintiff sought damages for alleged defamatory statements made by the defendant. The dispute came before the court with the plaintiff arguing that the defendant's statements caused serious harm, while the defendant denied the allegations and argued that the plaintiff had not established serious harm. The court was tasked with determining whether the plaintiff had succeeded in proving the case and what orders, if any, should be made in relation to costs.

The primary legal issues before the court were whether the plaintiff had established that the defendant's statements were defamatory, whether the plaintiff had demonstrated that the statements had caused serious harm, and if the plaintiff's failure to establish serious harm should result in an indemnity costs order. The court had to consider the plaintiff's failure to establish serious harm and the offers made by the parties under Calderbank and to determine if these factors justified an indemnity costs order.

In its reasoning, the court found that the plaintiff had failed to establish that the defendant's statements had caused serious harm. The court noted that the plaintiff's failure to meet this burden of proof was significant, and it considered the offers made by both parties under Calderbank and the plaintiff's offer to make amends. The court held that the plaintiff's failure to establish serious harm, coupled with the offers made, warranted an indemnity costs order against the plaintiff. The court determined that the plaintiff was to pay the defendant’s costs of the proceedings on the ordinary basis up to a specified date and thereafter on an indemnity basis.

The court ordered that the plaintiff was to pay the defendant's costs of the proceedings on the ordinary basis up to 8 August 2022, and thereafter on an indemnity basis. This order reflected the court's assessment of the plaintiff's failure to establish serious harm and the offers made by the parties, which justified the indemnity costs order.

Orders

Orders of the court

(1) The plaintiff is to pay the defendant’s costs of these proceedings on the ordinary basis up to 8 August 2022 and thereafter on an indemnity basis.

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.