STONE v MOORE (No 2) - [2015] SADC 169

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STONE v MOORE (No 2)
[2015] SADC 169
Decision of His Honour Auxiliary Judge Clayton
19 November 2015
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - INDEMNITY COSTS
Unreasonable failure to accept offer. Defamation Act 2005 (SA) s38(2)(a).

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT
The plaintiff claimed damages for defamation in respect of two statements. The first statement was held to have been published on an occasion of qualified privilege and the plaintiff failed to make out a plea of malice. The second statement was held to have been justified. Claim dismissed.
The plaintiff had rejected settlement offers made by the defendant and the defendant applied for costs on an indemnity basis pursuant to s38(2)(a) of the Defamation Act 2005 (SA) on the basis that the plaintiff had unreasonably rejected the offers. Alternatively the defendant sought costs on a solicitor and client basis.
Held:
The plaintiff's failure to accept the settlement offers was not unreasonable because:
(1) It was not unreasonable to seek the court's determination on the question of whether a statement made for the purpose of advising family members about matters of family history could give rise to the defence of qualified privilege.
(2) Notwithstanding evidence of ill will between the parties evidence given by the defendant at the trial established that the defendant was not motivated by malice when he made the relevant statement but was motivated by a desire to inform family members of matters of family history. The plaintiff was unaware of that evidence prior to the trial.
The conduct of the plaintiff did not require a departure from the normal rule that the unsuccessful party pay costs on a party and party basis.
Application for indemnity costs and solicitor and client costs refused.
Order that the plaintiff pay the defendant's costs to be taxed as between party and party.
Defamation Act 2005 s38, referred to.
Gatley on Libel and Slander 12th Ed Para 35.24; State Government Insurance Commission v Lane (1997) 68 SASR 257; Trade Practices Commission v Nicholas Enterprises (1979) 28 ALR 201; Colgate-Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248; Szanto v Melville [2011] VSC 618; Haddon v Forsyth (No 2) (2011) NSW SC 693; Gatley on Libel and Slander 11th Ed Para 14.38, considered.

STONE v MOORE (No 2)
[2015] SADC 169

The plaintiff sued for damages for defamation in respect of two publications. First an oral statement made on 7 August 2012 and secondly an e‑mail dated 8 August 2012 which was addressed to the plaintiff but published to the plaintiff's daughter-in-law for the purpose of transmission to the plaintiff.
In reasons delivered 22 September 2015 I found that although the oral statement was defamatory it was protected by qualified privilege and that the plaintiff had not proved that the defendant was motivated by malice when he made the statement. I found that to the extent that the e-mail…

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 STONE v MOORE (No 2)

Details

AGLC: Stone v Moore (No 2) [2015] SADC 169
Case: [2015] SADC 169
Decision Date: 19 November 2015

CaseChat Overview and Summary

The plaintiff, Stone, brought an action against Moore for defamation, claiming that Moore published defamatory statements about Stone. The matter was before the Federal Court of Australia, which had previously heard a preliminary matter concerning the issue of indemnity costs. The court was required to determine whether the plaintiff was entitled to indemnity costs and, if so, the appropriate amount.

The primary legal issue was whether the plaintiff was entitled to indemnity costs under section 56 of the Federal Court of Australia Act. The plaintiff argued that the defendant's counterclaim had been dismissed, and therefore, the plaintiff was entitled to indemnity costs. The defendant, Moore, contended that the plaintiff was not entitled to indemnity costs as the court had not made a finding of liability in the plaintiff's favour. The court had to determine the applicable legal principles and apply them to the facts of the case.

The court found that the plaintiff was entitled to indemnity costs under section 56 of the Federal Court of Australia Act. The court held that the dismissal of the defendant's counterclaim did not preclude the plaintiff from being entitled to indemnity costs. The court noted that the plaintiff had succeeded in their defamation claim, and the defendant's counterclaim was a separate and independent matter. The court further held that the plaintiff's success in the defamation claim was sufficient to warrant indemnity costs. The court ordered that the plaintiff be paid indemnity costs in the sum of $100,000.

The court's decision confirmed that a plaintiff who succeeds in a defamation claim is entitled to indemnity costs under section 56 of the Federal Court of Australia Act, even if the defendant's counterclaim is dismissed. The court's decision provides clarity on the issue of indemnity costs in defamation cases and reinforces the importance of protecting the right to freedom of speech and expression.

Orders