SUPREME COURT OF QUEENSLAND
CITATION: Wagner & Ors v Nine Network Australia & Ors (No 2) [2019] QSC 309 PARTIES: DENIS WAGNER (first plaintiff) JOHN WAGNER (second plaintiff) NEILL WAGNER (third plaintiff) JOE WAGNER (fourth plaintiff) v
NINE NETWORK AUSTRALIA PTY LTD
(ACN 008 685 407)(first defendant) TCN CHANNEL NINE PTY LTD
(ACN 001 549 560)(second defendant) QUEENSLAND TELEVISION LIMITED
(ACN 009 674 373)(third defendant) WIN TELEVISION QLD PTY LTD
(ACN 009 697 198)(fourth defendant) NINEMSN PTY LTD
(ACN 077 753 461)(fifth defendant) NICHOLAS CHARLES CATER (sixth defendant) FILE NO: 11789 of 2015 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING Supreme Court of Queensland at Brisbane COURT: DELIVERED ON: 16 December 2019 DELIVERED AT: Brisbane HEARING DATE: Written submissions filed 25 November 2019, 2 and 6
December 2019JUDGE: Applegarth J ORDER: The defendants pay the plaintiffs’ costs of and incidental to the proceeding to be assessed on the standard basis up to and including 28 February 2019, and thereafter to be
assessed on an indemnity basis.CATCHWORDS:
DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where
each of the plaintiffs was awarded damages for defamation in respect of their claims against the defendants – where the plaintiffs seek indemnity costs in reliance on s 40 Defamation Act 2005 (Qld) and, in the alternative, on the principles in
Calderbank v Calderbank – where the defendants made a settlement offer prior to trial and the plaintiffs made a counter- offer – whether the defendants unreasonably failed to make a “settlement offer” because their settlement offer was not a
“reasonable offer at the time it was made” – whether the defendants unreasonably failed to agree to the settlement offer proposed by the plaintiffs – whether the defendants should pay
the plaintiffs’ costs on the indemnity basisDefamation Act 2005 (Qld), s 40
Uniform Civil Procedure Rules 1999 (Qld), r 360Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674;
[2018] VSCA 154, cited
Calderbank v Calderbank [1975] 3 All ER 333, considered
Davis v Nationwide News Pty Ltd [2008] NSWSC 946, cited
J & D Rigging Pty Ltd v Agripower Australia Ltd [2014]
QCA 23, cited
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19;
[2017] QCA 70, cited
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC
201, cited
Wagner & Ors v Nine Network Australia & Ors [2019] QSC
284, citedCOUNSEL: T D Blackburn SC and P J McCafferty QC for the plaintiffs
R J Anderson QC for the defendantsSOLICITORS: Corrs Chambers Westgarth for the plaintiffs
Macpherson Kelley for the defendants
The parties agree that the defendants should be ordered to pay the plaintiffs’ costs of the
proceedings. The issue is whether they should be assessed on an indemnity basis. The plaintiffs submit that they should be. They rely on s 40 of the Defamation Act 2005 (Qld) and, in the alternative, on the principles in
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- Case
- [2019] QSC 309
- Decision Date
CaseChat Overview and Summary
The central legal issues in the case were whether the defendants' statements were indeed defamatory, and if so, whether the plaintiffs were entitled to indemnity costs given the circumstances of the case. Specifically, the court had to determine whether the defendants' settlement offers were sufficient to warrant the award of indemnity costs to the plaintiffs. The court needed to balance the principles of proportionality in awarding costs against the practicalities of settling such disputes.
The court found that the defendants' statements were defamatory, causing harm to the plaintiffs' reputations. It was noted that the defendants had made settlement offers which, while not accepted by the plaintiffs, were considered significant in the context of the case. The court held that the settlement offers were such that the plaintiffs' entitlement to indemnity costs was not automatic. Instead, the court considered the offers in light of the principles governing indemnity costs and concluded that the plaintiffs were not entitled to such costs. The court emphasised the importance of proportionality and the context of the settlement offers in reaching its decision.
The final orders of the court were that the defendants were to pay the plaintiffs' costs of and incidental to the proceedings, but without awarding indemnity costs. This decision reflects the court's careful consideration of the settlement offers and the broader principles of costs in defamation cases.
Orders
Orders of the court
The defendants pay the plaintiffs’ costs of and incidental to
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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