Turtur AO v Connor

[2021] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

TURTUR AO v CONNOR

[2021] SADC 151

Reasons for Decision of her Honour Judge Schammer  

17 December 2021

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS

The applicant claimed damages in defamation against the respondent arising from her publication of three Facebook posts on 30 March 2019.

In a judgment delivered on 17 November 2021, I found that the first two Facebook posts were defamatory and had been published by the respondent. The defence of triviality was not made out. Damages were assessed in the sum of $30,000.00. I declined to make any award of aggravated damages.

The applicant seeks an order that the respondent pay his costs of action on an indemnity basis, or in the alternative, on a standard costs basis, to be taxed if not agreed, with the action to be certified fit for senior counsel.

In addition, the applicant seeks payment of pre-judgment interest fixed in the sum of $4,073.97.

The respondent contends that the applicant should pay her costs on an indemnity basis or alternatively, on a standard costs basis, for the period on or after 31 March 2021 and that there should be no order as to costs prior to that date, or in the alternative, that there should be no order as to the costs of the proceedings. The respondent opposes any application to certify the action as fit for senior counsel and submits that no award for interest should be allowed or, if interest is awarded, it should not exceed $900.00.

Neither party filed an offer such as to invoke the cost penalties outlined in r 132.10 of the Uniform Civil Rules 2020.

On 31 March 2021, the respondent's solicitors conveyed an offer to the applicant's solicitors to resolve the claim on the basis that she pay damages in the sum of $30,000 and a 'reasonable contribution' to the applicant's costs (the offer of 31 March 2021).

The respondent requested the applicant's solicitors provide details of the applicant's costs, in order for her to consider a reasonable offer.

The applicant never acceded to that request and did not accept the offer.

In issue is:

1. Whether the offer of 31 March 2021 is a 'settlement offer' pursuant to s 38(3) of the Act.

2.   Whether the offer of 31 March 2021 is a Calderbank offer, such that the applicant's failure to accept it was unreasonable.

3.   Should the Court, in any event, exercise its discretion as to costs such as to depart from the usual course of ordering that costs follow the event.

Orders:

1.   The respondent is to pay the applicant's costs incurred up to and including 7 May 2021, on a standard costs basis, to be taxed if not agreed.

2.   The respondent is to pay 40% of the applicant's costs incurred after 7 May 2021, on a standard costs basis, to be taxed if not agreed.

3.   I decline to certify the action fit for senior counsel.

4.   The respondent is to pay to…