Stanton v Fell (No 2) - [2014] NSWSC 1052

Supreme Court

New South Wales

Medium Neutral Citation: Stanton v Fell (No 2) [2014] NSWSC 1052
Hearing dates: 7 November 2013
Decision date: 05 August 2014
Before: Simpson J
Decision:
The plaintiff pay the defendant's costs on an indemnity basis.

Catchwords: COSTS - defamation - Defamation Act 2005 (NSW), s 40 - verdict for defendant - plaintiff to pay defendant's costs - order sought that costs be paid on an indemnity basis - whether plaintiff unreasonably failed to accept settlement offer made by the defendant - whether interests of justice require otherwise than an order that costs be paid on an indemnity basis - defendant showed more than the plaintiff merely failing in proceedings - Haddon v Forsyth (No 2) [2011] NSWSC 693 - plaintiff's failure to accept first and second offers was unreasonable - interests of justice require that defendant be fully indemnified - plaintiff to pay defendant's costs on an indemnity basis
Legislation Cited: Defamation Act 2005 (NSW)
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Haddon v Forsyth (No 2) [2011] NSWSC 693
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority [2005] VSCA 298; 13 VR 435
Stanton v Fell [2013] NSWSC 1001
Category: Costs
Parties: Arthur Peter Stanton (Plaintiff)
Gary Fell (Defendant)
Representation: Counsel:
S T Chrysanthou (Plaintiff)
P J Hayes (Defendant)
Solicitors:
Access Law Group (Plaintiff)
Russell Kennedy, Melbourne (Defendant)

File Number(s): 2012/288471

Judgment

This claim arises out of defamation proceedings unsuccessfully brought by the plaintiff, Dr Arthur Stanton, against the defendant Mr (or Dr) Gary Fell. The plaintiff's claim in defamation failed, for five independent reasons: Stanton v Fell [2013] NSWSC 1001. I dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant's costs. The defendant now seeks an order that the costs be paid on an indemnity basis. Section 40 of the Defamation Act 2005 (NSW) relevantly provides:

"40 Costs in defamation proceedings

(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) ...

(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 was a reasonable offer at the time it was made."

The questions which arise are:

(i) Did the plaintiff unreasonably fail…

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 Stanton v Fell (No 2)

Details

AGLC: Stanton v Fell (No 2) [2014] NSWSC 1052
Case: [2014] NSWSC 1052
Decision Date: 05 August 2014

CaseChat Overview and Summary

Stanton v Fell (No 2) involved a defamation dispute between the plaintiff and the defendant. The plaintiff alleged that the defendant made defamatory statements about him, and the case was decided in the defendant's favour. The plaintiff sought to challenge the order that they pay the defendant's costs, arguing that the order should not be on an indemnity basis. The key legal issues were whether the plaintiff unreasonably failed to accept settlement offers from the defendant and whether the interests of justice required an order that the costs be paid on an indemnity basis.

The court considered the principles established in Haddon v Forsyth (No 2) [2011] NSWSC 693, which held that a plaintiff who unreasonably fails to accept a settlement offer may be ordered to pay the defendant's costs on an indemnity basis. The court found that the plaintiff's failure to accept the first and second offers made by the defendant was unreasonable. The plaintiff's arguments for not accepting the offers were not persuasive, and the court concluded that the plaintiff had more than merely failed in the proceedings. The court also found that the interests of justice required that the defendant be fully indemnified for the costs incurred.

The court ordered that the plaintiff pay the defendant's costs on an indemnity basis. The court found that the plaintiff's failure to accept the settlement offers was unreasonable, and the interests of justice required that the defendant be fully indemnified. The court also found that the plaintiff had more than merely failed in the proceedings, and the order for indemnity costs was appropriate. The court did not find it necessary to consider any other factors in making its decision.

Orders