Turtur AO v Connor

Turtur AO v Connor concerned an action for defamation initiated by the applicant against the respondent. The respondent, in turn, sought an order that the applicant pay her costs on an indemnity basis or alternatively, on a standard basis, for the period on or after 31 March 2021. The respondent also opposed any application to certify the action as fit for senior counsel and sought that no award for interest should be allowed, or if interest was awarded, it should not exceed $900. The primary legal issue the court needed to resolve was whether the applicant's failure to properly engage in the negotiation process in response to the respondent's offer of settlement, and his subsequent refusal to compromise, warranted an order for costs on an indemnity basis.

The court examined the conduct of both parties, particularly the applicant's failure to comply with pre-action obligations and his handling of the respondent's offer of settlement. The court noted that while the applicant's failure to comply with his pre-action obligations was not in dispute, it was not satisfied that the action would have settled had those obligations been fulfilled. The court found that the respondent had made a genuine effort to compromise with the offer of 31 March 2021, which represented a significant change in her stance. The applicant's refusal to engage with this offer, despite its potential to avoid the costs of trial, was deemed unreasonable. The court concluded that the applicant's failure to properly engage in the negotiating process effectively stifled the possibility of resolution. Therefore, while the court did not find it appropriate to award costs on an indemnity basis, it did find it appropriate to award costs on a basis other than 'costs follow the event', given the circumstances.

The court ordered that the respondent pay the applicant's costs incurred up to and including 7 May 2021 on a standard costs basis, and 40% of the applicant's costs incurred after 7 May 2021, also on a standard basis. The court declined to certify the action fit for senior counsel and ordered that the respondent pay pre-judgment interest fixed in the sum of $3,000.