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

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].
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.
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…

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 Stokes v Ragless (No 2)

Details

AGLC: Stokes v Ragless (No 2) [2018] SASC 56
Case: [2018] SASC 56
Decision Date: 17 April 2018

CaseChat Overview and Summary

Stokes v Ragless (No 2) involved the plaintiff applying for costs of a defamation action on an indemnity basis under section 38 of the Defamation Act 2005 (SA). The plaintiff, Stokes, had filed four offers of settlement during the proceedings. At the time each offer was served, Ragless, the defendant, was unrepresented, and the letters serving the filed offers did not explain the implications of accepting or not accepting these offers. The court had to determine whether Stokes was entitled to costs on an indemnity basis and whether Ragless unreasonably failed to make a settlement offer or agree to any settlement offer proposed by Stokes.

The court held that it could not be assumed that an unrepresented defendant like Ragless would be aware of the Supreme Court Rules regarding filed offers or section 38 of the Defamation Act. Consequently, the court could not conclude that Ragless unreasonably failed to make or agree to any filed offer. Given all the circumstances, the court found that it was in the interests of justice for Stokes to have his costs on a party/party basis. The court also referred the question of whether the costs should be awarded by way of a lump sum to a Master for determination or adjudication.

This decision highlights the importance of ensuring that offers of settlement are properly communicated to unrepresented parties and the potential implications of not doing so. The court's ruling underscores the necessity for clarity in the communication of legal processes and the potential consequences for unrepresented defendants who fail to understand these processes. The referral to a Master for the determination of the lump sum aspect of the costs demonstrates the court's commitment to ensuring a fair and just outcome.

Orders