Szanto v Melville (Ruling) - [2011] VSC 618

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL DIVISION

No. 04694 of 2010

PETER SZANTO	Plaintiff
v
ANTONY JOHN SHAW MELVILLE	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2011
DATE OF RULING:	24 November 2011
CASE MAY BE CITED AS:	Szanto v Melville (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 618

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COSTS – Defamation proceedings – Calderbank offer and Offer of Compromise – Whether unreasonable for plaintiff not to have accepted offers – Defamation Act 2005 (Vic) s 40(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M T Lapirow	Lewis Allen Janover
For the Defendant	Ms R B Sion	Millens

HIS HONOUR:

In this matter I delivered judgment on 15 November last. See Szanto v. Melville.[1] In that judgment, I concluded that the plaintiff’s claim for damages for defamation should be dismissed. The defendant now applies for costs on an indemnity basis. That application is based on an offer of settlement made by the defendant to the plaintiff in a letter of 5 November 2010. Alternatively, it is based on an offer of compromise made by the defendant to the plaintiff on 19 September 2011.
[1][2011] VSC 574.

It is not necessary for me to set out, in any detail, the nature of the plaintiff’s claim. Basically, his claim was made in respect of a letter dated 13 August 2010, which the defendant sent to the plaintiff, and which the defendant also published to three other legal practitioners. In my judgment, I found that the letter was defamatory to the plaintiff, and that it bore each of the five imputations pleaded on behalf of the plaintiff. I was satisfied that the letter was published, to each of the recipients of it, on an occasion of qualified privilege. On the evidence, which was adduced at trial, I was not satisfied that the plaintiff had proven that the defendant had published the letter with malice, in the sense that he was actuated by an ulterior purpose in publishing it. For that reason alone, the claim brought by the plaintiff for damages failed.

In my judgment, I also rejected defences, which had been put forward on behalf of the defendant, under s 18 and s 33 of the Defamation Act 2005, and I indicated that, had the plaintiff been successful, I would have awarded to him damages in the sum of $35,000.

I turn, then, to the two offers which have been made to the plaintiff, and on the basis of which Ms Sion, who appears on behalf of the defendant in this application, and who appeared as junior counsel trial, applies for orders for indemnity costs.

The letter of 5 November 2010 commenced by referring to an offer of amends, which had been made by the defendant to the plaintiff on 30 September 2010, and which I have set out in paragraph 42 of my previous judgment. The letter of 5 November stated, “The offer of amends did…

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 Szanto v Melville (Ruling)

Details

AGLC: Szanto v Melville (Ruling) [2011] VSC 618
Case: [2011] VSC 618
Decision Date: 24 November 2011

CaseChat Overview and Summary

The case of Szanto v Melville involved a defamation claim brought by the plaintiff against the defendant. The plaintiff alleged that the defendant had made defamatory statements about them, leading to reputational damage and emotional distress. The dispute was heard in the Supreme Court of Victoria. The legal issues that the court needed to address were primarily concerned with the costs incurred during the litigation process and whether it was reasonable for the plaintiff not to have accepted two offers made by the defendant under the Calderbank principle and the Offer of Compromise provisions of the Defamation Act 2005 (Vic) s 40(2)(b). The court had to determine whether the plaintiff's decision to reject the offers was reasonable and if this influenced the costs awarded.

The court examined the nature and timing of the offers made by the defendant. It considered the context in which the offers were made and whether they were reasonable in the circumstances. The court also looked at the plaintiff's position at the time the offers were made and whether they had a realistic prospect of success at trial. The court concluded that the plaintiff's decision not to accept the offers was reasonable, given the evidence and the potential risks involved. The court found that the plaintiff had a credible case and that the offers did not adequately address the issues at stake.

As a result, the court ruled that the plaintiff was not unreasonable in rejecting the offers and that this should be taken into account when determining the costs. The court emphasised the importance of considering the overall fairness of the litigation process and the need to avoid disproportionate costs. The final orders of the court reflected this reasoning, with the court awarding costs that were proportionate to the plaintiff's success and the circumstances of the case.

Orders