Stokes v Ragless (No 2)

[2018] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

STOKES v RAGLESS (No 2)

[2018] SASC 56

Judgment of The Honourable Justice Bampton

17 April 2018

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS

Application by plaintiff for costs of a defamation action on an indemnity basis pursuant to s 38 of the Defamation Act 2005 (SA) – plaintiff filed four offers of settlement – defendant unrepresented at the time each offer was served – letters serving filed offers did not explain the implications of accepting or not accepting the filed offers – whether plaintiff entitled to costs on an indemnity basis – whether defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

HELD: It cannot be assumed that an unrepresented defendant would be aware of the Supreme Court Rules regarding filed offers or s 38 of the Defamation Act such that the Court can conclude that the defendant unreasonably failed to make or agree to any filed offer – in all of the circumstances of this matter it is in the interests of justice that the plaintiff have his costs on a party/party basis – the question of whether costs should be awarded by way of a lump sum is referred to a Master for determination or adjudication.

Defamation Act 2005 (SA) s 38, referred to.
Lesses v Maras (No 3) [2017] SASCFC 154; Stokes v Ragless [2017] SASC 159, considered.

STOKES v RAGLESS (No 2)
[2018] SASC 56

Civil:  Application for costs

1. BAMPTON J:     The plaintiff seeks his costs of this defamation action on an indemnity basis pursuant to s 38 of the Defamation Act 2005 (SA). The plaintiff’s counsel referred to the comments of the Full Court in Lesses v Maras (No 3)[1] regarding the application of s 38 of the Defamation Act. It is to be noted that s 38(2)(a) and s 38(2)(b) of the Defamation Act, in the words of the Full Court, “create two discrete rules that are mandatory subject only to the interests of justice otherwise requiring”.  The rules only apply where a court determines that costs are to be awarded in favour of a successful party.  The plaintiff has obtained a judgment in his favour and is entitled to his costs of the action.

   [1] [2017] SASCFC 154 at [51]-[58].

2. The Defamation Act prescribes that the plaintiff is entitled to his costs 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.  The plaintiff contends that the defendant unreasonably failed to make any settlement offer and unreasonably failed to agree any settlement offers proposed by him and it is not in the interests of justice to require costs to be otherwise ordered.

3. Other than the period 20 October 2014 to 9 February 2015, the defendant was self-represented. The plaintiff filed four offers of settlement. At each time the offers were served on the defendant, the defendant was unrepresented. Each letter enclosing the offer of settlement did not explain to the unrepresented defendant the implications of accepting or not accepting each offer. Whilst there is no rule obliging a party represented by solicitors to inform an unrepresented party of the implications of accepting or not accepting a filed offer, in my view where this is not done the interests of justice require that costs are not awarded on an indemnity basis. It cannot be assumed an unrepresented defendant would be aware of the Supreme Court Rules regarding filed offers and s 38 of the Defamation Act such that the court can conclude the defendant unreasonably failed to make or agree to any settlement offer.

4. I stated in my judgment[2] that the matter should have been progressed to trial soon after the granting of the injunctive orders by Parker J. I have taken into account the submissions made by the plaintiff on this costs application and also his closing submissions filed at the conclusion of the trial of the matter.

   [2]    Stokes v Ragless [2017] SASC 159.

5. Whilst it is not decisive of the matter, I note that in his litigation plan the plaintiff did not indicate that the trial of the matter would occur later than within the expected nine months from the date of issue. I maintain my view that in circumstances where the defendant was in the main unrepresented and where there were concerns about his flouting of Parker J’s injunctive orders and continued publication of defamatory matters and where the plaintiff knew well the person he was litigating against as opposed to, for example, a media defendant, the matter should have been tried earlier than it was. 

6. I also note that during interlocutory hearings, for example 5 September 2014, 25 September 2015 and 27 January 2015, Judge Dart made it clear that the matter should proceed to trial and not be “swamped with interlocutory applications”.[3]  During a hearing on 27 April 2015, Judge Dart said to the plaintiff’s counsel:[4]

   I’m just saying I could get you a trial in a couple of months.  You can bring it to a head and finish it.  If you don’t want to do that that’s fine but if you want to keep litigating for another year or two –

   [3]    Transcript of Proceedings (Supreme Court of South Australia, Judge Dart, 27 January 2015) at 27.

   [4]    Transcript of Proceedings (Supreme Court of South Australia, Judge Dart, 27 April 2015) at 7.

7. In all of the circumstances, it is my view that it is in the interests of justice that the plaintiff have his costs of the action including attendances on 10 November 2017 and 20 November 2017, the attendance on 21 March 2018, the hearing of this application for costs, and this order on a party/party basis. 

8. The plaintiff is to also have his costs of and incidental to the application filed 1 December 2017 (FDN 152), including attendances on 15 December 2017 and the hearing of 6 February 2018, the application filed 23 February 2018 (FDN 163), the hearing of 21 March 2018 to the extent that it related to FDN 163, the notice of appeal filed 2 February 2018, and the notice of appeal filed 13 February 2018 on a party/party basis. 

9. There is to be no order as to costs thrown away by the vacation by the court of the hearings listed for 2 March 2018 and 9 March 2018.

10. The question of whether the costs I have ordered should be awarded by way of a lump sum is referred to Master Dart for determination or adjudication on a date to be advised by Master Dart’s chambers.