Tsamis v Victoria (No 8)

The Court of Appeal was presented with an appeal by the respondent, Victoria, against a decision awarding the applicant, Tsamis, indemnity costs in a defamation action. The original trial had resulted in a partial victory for Tsamis, with the jury finding some defamatory imputations proven, but others not. The case centred on the interpretation and application of the Defamation Act 2005 (Vic) and the principles governing costs in defamation cases, particularly when a plaintiff achieves a partial victory. The key legal issues before the Court of Appeal were whether the plaintiff, having obtained a partial victory, was confined to a partial costs order, and if indemnity costs were appropriate under the circumstances.

The Court of Appeal meticulously examined the principles established in Chen v Chan, highlighting that indemnity costs are not automatic in defamation cases, even if a plaintiff achieves a partial victory. The Court recognised the importance of the principles set out in Chen v Chan, which provide that indemnity costs are an exceptional remedy and should only be awarded in circumstances where the opposing party has acted in a vexatious, oppressive, or abusive manner. The Court further noted that the assessment of costs in defamation cases requires a balanced approach, taking into account the overall conduct of the parties and the nature of the litigation. The Court of Appeal determined that, while Tsamis had achieved a partial victory, the conduct of Victoria did not warrant the imposition of indemnity costs. Instead, the Court concluded that the appropriate course was to assess costs on a standard basis, reflecting the partial success of the plaintiff.

In light of the above considerations, the Court of Appeal allowed the appeal, setting aside the order for indemnity costs and substituting it with an order for costs on the standard basis. The Court emphasised the need for a careful and nuanced approach in assessing costs in defamation cases, particularly when a plaintiff achieves a partial victory. The decision underscores the importance of adhering to established principles and avoiding the automatic imposition of indemnity costs, unless the circumstances clearly warrant such an exceptional remedy. The Court's reasoning reflects a balanced and principled approach to the assessment of costs in defamation litigation, ensuring that the outcome is fair and just for both parties.