STOKES v RAGLESS

[2018] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

STOKES v RAGLESS

[2018] SASCFC 62

Reasons for Decision of The Full Court

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Blue)

19 June 2018

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

Application for permission to appeal against a decision of a single Judge of the Supreme Court on question of costs.

Held per curiam: the appeal is reasonably arguable. Permission to appeal granted.

Defamation Act 2005 (SA) s 38(2)(a), referred to.

STOKES v RAGLESS
[2018] SASCFC 62

Full Court:       Vanstone, Kelly and Blue JJ

1. THE COURT: The successful plaintiff in a defamation action seeks permission to appeal on the question of costs. He complains that the award of costs of trial in his favour should have been on an indemnity basis, he having been awarded more damages than he indicated he was prepared to accept in a filed offer of settlement. He relies on s 38(2)(a) of the Defamation Act 2005 (SA) which provides that unless the interests of justice require otherwise a court must order costs on an indemnity basis to a successful plaintiff in defamation proceedings.

2. The Judge declined to award costs on an indemnity basis as the defendant was unrepresented and – the Judge found – was not advised that failure to better the filed offer at trial would result in an award of indemnity costs.

3. The plaintiff claims to have been surprised by this finding, and wishes to present material to prove that the defendant was informed of the content of rules relating to filed offers.

4. The application raises the question to what extent, if any, the operation of s 38(2) of the Defamation Act depends on the knowledge of the parties as to relevant statutory and regulatory provisions.  The application is reasonably arguable.

5. Accordingly, permission to appeal will be granted.