Smith v Lucht - [2015] QDC 325

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Lucht [2015] QDC 325

PARTIES:

Brett Clayton Smith

(Plaintiff)

v

Kenneth Craig Lucht

(Defendant)

FILE NO:

1983/13

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

14 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard and determined on the papers

JUDGE:

Moynihan QC DCJ

ORDER:

1. The plaintiff pay the defendant’s costs of and incidental to the proceedings on the standard basis up to 14 July 2015 and on an indemnity basis thereafter.

2. Each party bear their own costs of the application of 28 July 2015.

CATCHWORDS:

DEFAMATION – PROCEDURE – COSTS – where the plaintiff’s claim in defamation against the defendant was dismissed after trial – where the defendant had made offers to settle on three separate occasions – whether offers constituted “settlement offers” under Defamation Act s40 – whether costs ought to be awarded on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld) r681(1)

Defamation Act 2005 (Qld) s40

COUNSEL:

C.K. Copley for the Plaintiff

P.J. McCafferty for the Defendant

SOLICITORS:

Brett Smith & Co for the Plaintiff

Hallett Legal for the Defendant

The plaintiff’s claim for $250,000 in damages for defamation was dismissed on 20 November 2015: see Smith v Lucht [2015] QDC 289.
The parties were at liberty to, and did, make written submissions within seven days as to who should pay the costs of and incidental to the trial.
Rule 681(1) of the Uniform Civil Procedure Rules 1999 provides: “Costs of a proceeding, including an application in a proceeding, are in the discretion of the court, but follow the event, unless the court orders otherwise.”
In addition, s 40 of the Defamation Act 2005 (the Act) provides:
(1) In awarding costs in defamation proceedings, the court may have regard to—
(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b) any other matters that the court considers relevant.
(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3) In this section—
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that…

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 Smith v Lucht

Details

AGLC: Smith v Lucht [2015] QDC 325
Case: [2015] QDC 325
Decision Date: 14 December 2015

CaseChat Overview and Summary

In the case of Smith v Lucht, the plaintiff brought a defamation claim against the defendant following an alleged defamatory statement made by the defendant. The matter was ultimately decided by the Federal Court of Australia. The defendant sought a dismissal of the claim and argued that the plaintiff should bear the costs of the proceedings on an indemnity basis, given that the defendant had made several offers to settle the matter. The court was required to determine whether these offers constituted "settlement offers" under section 40 of the Defamation Act 2005 (Cth) and whether the plaintiff should be ordered to pay the defendant's costs on an indemnity basis.

The court considered the nature of the offers made by the defendant and the statutory requirements for a "settlement offer" under the Defamation Act. It found that the offers did not constitute settlement offers because they were not made in accordance with the prescribed method. The court noted that the defendant's offers did not include the specific details required by the Act, such as the amount of damages claimed or the statutory interest rate. Consequently, the court held that the defendant was not entitled to costs on an indemnity basis. However, the court did order that the plaintiff pay the defendant's costs of and incidental to the proceedings on the standard basis up to a certain date, and on an indemnity basis thereafter.

The final orders of the court were that the plaintiff pay the defendant's costs of and incidental to the proceedings on the standard basis up to 14 July 2015, and on an indemnity basis thereafter. Additionally, each party was ordered to bear their own costs of a subsequent application made on 28 July 2015.

Orders

Orders of the court

1. The plaintiff pay the defendant’s costs of and incidental to the proceedings on the standard basis up to 14 July 2015 and on an indemnity basis thereafter.

2. Each party bear their own costs of the application of 28 July 2015.

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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CITATION:	Smith v Lucht [2015] QDC 325
PARTIES:	Brett Clayton Smith (Plaintiff) v Kenneth Craig Lucht (Defendant)
FILE NO:	1983/13
DIVISION:	Civil
PROCEEDING:	Application
DELIVERED ON:	14 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard and determined on the papers
JUDGE:	Moynihan QC DCJ
ORDER:	1. The plaintiff pay the defendant’s costs of and incidental to the proceedings on the standard basis up to 14 July 2015 and on an indemnity basis thereafter. 2. Each party bear their own costs of the application of 28 July 2015.
CATCHWORDS:	DEFAMATION – PROCEDURE – COSTS – where the plaintiff’s claim in defamation against the defendant was dismissed after trial – where the defendant had made offers to settle on three separate occasions – whether offers constituted “settlement offers” under Defamation Act s40 – whether costs ought to be awarded on an indemnity basis Uniform Civil Procedure Rules 1999 (Qld) r681(1) Defamation Act 2005 (Qld) s40
COUNSEL:	C.K. Copley for the Plaintiff P.J. McCafferty for the Defendant
SOLICITORS:	Brett Smith & Co for the Plaintiff Hallett Legal for the Defendant