Wang v Qin (Ruling)
[2022] VCC 102
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-20-04972
| PENG WANG (aka BARRY WANG) | Plaintiff |
| v | |
| LEI QIN (aka JESSIE QIN) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2022 | |
DATE OF RULING: | 11 February 2022 | |
CASE MAY BE CITED AS: | Wang v Qin (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 102 | |
RULING
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Subject:COSTS
Catchwords: Costs – defamation – standard costs
Legislation Cited: Defamation Act 2005; County Court Civil Procedure Rules 2018; Civil Procedure Act 2010
Cases Cited:Wang v Qin [2021] VCC 1906; Helms Plumbing v Coulson & Anor No.2) [2015] VCC 1879; Roads Corporation v Love [2010] VSC 154; Raelene Hardie v The Herald and Weekly Times Pty Ltd and Andrew Rule [No 2] [2016] VSCA 130; Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; Alijade and MKIC v OCBC [2004] VSC 351
Ruling: Standard costs ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Line | Jasper Lawyers Pty Ltd |
| For the Defendant | No appearance | - |
HER HONOUR:
1On 3 December 2021 judgment was entered for the plaintiff in the amount of $150,000 plus interest.[1]
[1] Wang v Qin [2021] VCC 1906
2In the ordinary course, the plaintiff would be entitled to his costs of the proceeding on a standard basis. The plaintiff seeks his costs of the proceeding on an indemnity basis from 6 May 2020, the date that the plaintiff first wrote to the defendant about the defamatory articles, alternatively 20 July 2020, the date a pre-litigation offer was made to the defendant, alternatively from 27 August 2020 when a Concerns Notice was served on the defendant, or from the commencement of the proceeding on 11 November 2020.
3In the alternative the plaintiff seeks his costs on a standard basis until 26 August 2021, and on an indemnity basis thereafter relying on the defendant’s failure to accept what the defendant purports to be an Offer of Compromise pursuant to Rule 26.08 of the County Court Civil Procedure Rules 2018 (‘the Rules’).
Offers made by the Plaintiff
4On 6 May 2020 the plaintiff, through his lawyers, wrote to the defendant advising her that he was in the process of preparing a Concerns Notice and that she ‘must use your earliest opportunity to mitigate your wrongful conduct’. The plaintiff informed the defendant that she could ‘make amends’ by:
(a) immediately ceasing and desisting from defaming our client;
(b) immediately retracting all defamatory publications about our client that you have published to date; and
(c) making a public apology to our client, the content of which must be in the form as approved by our client.
5On 20 July 2020 the plaintiff sent a Concerns Notice to the defendant. This notice was also personally served on the defendant on 27 August 2020. This notice informed the defendant that the plaintiff required her to give the following undertakings by not later than 4.00pm on 21 August 2020:
(a) that you publish a publicly available apology for, and retract, the false and defamatory publications complained of herein, in a form acceptable to our client;
(b) that you remove all false or defamatory material posted by you about our client on any platform, including the First Post and the Second Post; and
(c) that you pay our client’s reasonable costs.
6The Concerns Notice did not contain the form or wording of the apology that was sought.
7On 24 August 2021 the plaintiff served on the defendant a document titled ‘Offer of Compromise’. This document set out as follows:
Take notice that the plaintiff offers to compromise this proceeding on the following terms:
1. The defendant publishes the enclosed apology written in both English and Chinese text on the Australian Village Gossiper platform, within 3 days of accepting this offer of compromise. Once published, the apology cannot be removed, edited or deleted for 7 days;
2. After the defendant has both (a) accepted this offer of compromise and has, within 3 days of having done so, (b) published the enclosed apology in English and Chinese on the Australian Village Gossiper platform for 7 days without it being removed, edited or deleted, the Plaintiff will, within 5 days of both (a) and (b) having occurred, discontinue this proceeding, being County Court proceeding bearing the number CI-20-04972.
3. The defendant does not post anything online, refencing implicitly or explicitly;
(a) the plaintiff, his daughter Selina Wang, or his ex-wife, Jing Gu;
(b) the two (2) articles the defendant posted on Australian Village Gossiper and the one (1) Tan Tan article, those three (3) articles being the subject of this proceeding;
(c) the plaintiff’s defamation claim against the defendant;
(d) this proceeding; or
the settlement of this proceeding,
for 2 years commencing on the day the defendant accepts this offer of compromise.
4. If the defendant has published any material which criticises or defames the plaintiff, his daughter Selina Wang, or his ex-wife Jing Gu that is currently available online, that the defendant deletes or otherwise removes that material if the defendant has the ability to do so, or, if the defendant does not have the ability to delete or remove the material, that the defendant requests that the material be deleted or removed by the operator of the relevant online platform;
5. That the defendant does not contact in any way (including in person or by telephone, post, email or other electronic means) and do (sic) not cause or instruct any other person to contact in any way (including in person or by telephone, post, email or other electronic means) the plaintiff, his daughter Selina Wang or his ex-wife Jing Gu, for 2 years commencing on the date the defendant accepts this offer;
6. That the defendant does not publicly make statements, or publish any material online, which criticises or defames the plaintiff, his daughter Selina Wang, or his ex-wife Jing Gu for 2 years commencing on the date the defendant accepts this offer of compromise;
7. That the defendant does not ever republish anywhere, in whole or in part, or cause or instructed anyone else to republish anywhere, in whole or in part, the statements made in;
(a) the two Australian Village Gossiper articles which are known as the First Article and the Second Article in this proceeding; and/or
(b) the statements in the Tan Tan article known as the Third Article in this proceeding;
8. This offer of compromise, once accepted, and the settlement of this proceeding, once settled, will be confidential and the fact of the compromise and settlement of this matter will not be disclosed except as required by Court order or the operation of law;
9. This offer is not inclusive of costs; and
10. Each party will bear their own costs.
8The enclosed apology was as follows:
In April 2020 I published various remarks and comments concerning Mr Peng Wang on the Australian Village Gossiper. I now acknowledge that those remarks and comments are considered to be defamatory and damaging to Mr Wang (sic) reputation. I hereby publicly retract all those remarks and comments. I apologise without reservation for publishing those remarks and comments. I sincerely hope Mr Wang is able to accept my apology as some recompense for the hurt and distress that my remarks and comments have caused him.
9This offer was open to the defendant for 14 days after service of the notice. The offer was not accepted.
10On 14 October 2021 the plaintiff sent a letter to the defendant which included a ‘without prejudice’ offer in largely the same terms as the ‘Offer of Compromise’ of 24 August 2021 with the following differences:
(a) The text of the apology was to remain on the Australian Village Gossiper for 14 days rather than 7 days;
(b) The defendant pay the plaintiff’s costs to date on a standard basis, to be taxed in default of agreement rather than each party bear their own costs.
11The offer was open until 12.00pm on 15 October 2021. The letter noted that the plaintiff’s costs to date were ‘not less than $100,000’. The offer was not accepted.
12On 18 October 2021, the first day of the trial, the plaintiff made a further offer to the defendant at approximately 10.30am. The offer was in the same terms as the offer of 14 October 2021 and was open to be accepted until 12.00pm.
13The offer was not accepted.
Offers made by the defendant
14On 29 August 2020 the defendant, by email, made what could be construed as an offer to settle the proceeding. She said that she would get the editor of Australian Village Gossiper to take down the posts and ‘we will stay out of each other’s business’.
15The defendant otherwise made ‘offers’ from time to time that she would settle the proceeding if the plaintiff paid her a sum of money.
Plaintiff’s submissions
16The plaintiff says he is entitled to indemnity costs on the basis of rule 26.08 of the Rules, which relevantly provides that:
…
(2) Where an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled –
(a) …
(b)in the case of any other claim of the plaintiff, to an order against the defendant for the plaintiff’s costs in respect of the claim before 11.00am on the second business day after the offer was served, taxed on the ordinarily applicable basis and for the plaintiff’s costs thereafter taxed on an indemnity basis.
….
17The plaintiff also relies on rule 26.08.01 which relates to pre-litigation offers and provides that:
(1) If –
(a) a party, before a proceeding has commenced, has made an offer in writing to another party (whether or not expressed to be without prejudice) to compromise any claim made in the proceeding on the terms specified in the offer;
(b) the offer was open to be accepted for a reasonable time, but was not accepted; and
(c) the offeror obtains an order or judgment in respect of the claim no less favourable to the offeror than the terms of the offer –
the Court shall take those matters into account in determining what order for costs to make in respect of the costs of the proceeding.
18The plaintiff says that both the letter of 6 May 2020 and the Concerns Notice of 20 July 2020 were pre-litigation offers within the terms of r26.08.1 and should be taken into account by the Court when determining the basis upon which costs should be ordered.
19The plaintiff says the court should consider the following matters:
(a) the stage of the proceeding at which the offers were received
(b) the time allowed for the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success as assessed at the date of the offer;
(e) the clarity with which the terms of the offer were expressed; and
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.[2]
[2] Helms Plumbing v Coulson & Anor 9No.2) [2015] VCC 1879 at paragraph [34]-[35]
20The plaintiff says that, although the 6 May 2020 letter and the Concerns Notice did not identify that the plaintiff would make application for costs, the defendant was warned that proceedings would be issued without further notice and reserved the plaintiff’s rights. The plaintiff says that the lack of explicit mention of a costs application is no bar to reliance on the offer for the purposes of an application for indemnity costs.[3]
[3] Roads Corporation v Love [2010] VSC 154 at [57]-[58]
21The plaintiff says that the result he obtained – an award of $150,000 and an injunction permanently restraining the defendant from further publication of the defamatory imputations, is no less favourable to the plaintiff than the terms of the undertaking sought in the letter and the Concerns Notice. Pursuant to r26.08.1 the Court should take into account the fact that he achieved an outcome no less favourable than his settlement offer, that the settlement offer was open for a reasonable time and that the defendant acted unreasonably in not accepting the offer, and award him indemnity costs from the date of either the 6 May 2020 letter or the Concerns Notice.
22Alternatively, the plaintiff submits that the result he obtained was no less favourable to him than the terms of the ‘Offer of Compromise’ dated 21 August 2021, which was re-put on 14 October 2021 and 18 October 2021. As these offers were put after the commencement of litigation, the plaintiff is entitled to indemnity costs from the date of such offers unless the Court otherwise orders.
23The plaintiff submits that there is no reason for the Court to otherwise order, having regard to all the circumstances of the case.
24In the further alternative, the plaintiff relies on s(40)1 of the Defamation Act 2005 which provides that the Court may have regard to the way in which the parties have conducted their cases, including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings, and to any other matters the court considers relevant in awarding costs.
25Importantly, section 40(2) provides that a court must (my emphasis) order costs of and incidental to the proceeding be awarded on an indemnity basis if the Court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, unless the interests of justice require otherwise.
26A settlement offer means any offer to settle the proceeding, including an offer to make amends whether before or after proceedings are commenced, that was a reasonable offer at the time it was made.
27The section therefore requires an assessment of both the reasonableness of any offers made, and the reasonableness of the conduct of a party in refusing any such offer, or refusing to make any such offer.
28The plaintiff submits that his offers to settle were reasonable, the defendant’s conduct in failing to accept his offer, or make any reasonable offer was not reasonable, and indemnity costs ought to be awarded.
29The plaintiff further points to his own conduct during the proceedings, which he submits was at all times appropriate and reasonable. The plaintiff says he ‘consistently conducted the case with an eye to reaching a reasonable compromise and showed an openness to settlement regardless of the emotive content of the defamatory articles and the significant harm they caused him’.
30The plaintiff submits that, in contrast, the defendant conducted her case unreasonably. She was aware of the unlawful intimidation of the plaintiff that was exerted by her parents to encourage him to drop the proceeding and took no steps to warn the plaintiff or to stop the conduct. She had legal representation for five months, from 1 December 2020 to 5 May 2021. During that period it can be assumed that she was advised about her prospects of successfully defending the claim, but despite this, she refused the offer made in August 2021, which required her to retract and apologise for the articles and give undertakings about her future conduct, but did not require her to pay any compensation or costs to the plaintiff.
31The plaintiff says that the defendant had no maintainable defence and would or should have been aware that she was likely to lose the case.
32Further, the plaintiff says the defendant conducted her defence in such a way as to unnecessarily prolong the trial. Despite repeated encouragement from the bench to engage lawyers and repeated explanations as to the procedural steps she was required to take in running her defence, she was ill-prepared, took unreasonable time to formulate questions, and was repetitive and prolix. She was on notice for months of the case against her, yet she did not prepare her documents which meant that numerous documents came before the Court late and in an untranslated form. This delayed matters whilst interpreters provided real-time translation, unnecessarily prolonging the trial. The plaintiff submits that the defendant conducted the trial in contravention of the overarching purposes of the Civil Procedure Act 2010 (Vic) and used the proceeding as ‘a vehicle to rehash her grievances about her romantic dealings with the plaintiff; as a vehicle for personal public relations by which she raised concerns about her portrayal in the media; and as a means to further smear the plaintiff by making scandalous claims about him, including fresh claims in her closing address.’
33Further, the defendant has apparently breached the terms of the permanent injunction obtained by the plaintiff, and has further defamed him. The plaintiff submits that this conduct is aggravating and a further reason for the Court to award indemnity costs.
Analysis
34The defendant did not appear at the costs hearing and made no submissions.
35In her absence the Court must still consider carefully the issues that arise.
Offer of Compromise - Rule 26
36The provisions of r26.08 relate to a circumstance in which a party has done no less well than an offer that party made to compromise the claim. The offers made by the plaintiff all included at least something that makes a direct comparison between the offer and the outcome at court impossible.
37The letter of 6 May 2020 said that the plaintiff had provided instructions to issue court proceedings should the defendant ‘fail to comply with our client’s requests which will be fully articulated in the Concerns Notice’. Importantly the letter did not suggest that the plaintiff’s requests had been fully articulated in the 6 May 2020 letter.
38Nothing in this letter indicated to the defendant that if she undertook steps (a) to (c) outlined in the letter, the plaintiff’s claim against her would be considered settled.
39The defendant had no way, based solely on this letter, of determining whether additional requests would be included in that Concerns Notice, as indeed occurred.
40The letter of 6 May 2020 does not constitute a settlement offer.
41The Concerns Notice sent 20 July 2020 required the defendant to make an apology in a form acceptable to the plaintiff. The form of the apology required was not included in the Concerns Notice. The Concerns Notice also required that the defendant pay the plaintiff’s reasonable costs, but did not specify what those costs were. One could infer that reasonable costs would be costs on a standard basis, to be taxed in default of agreement, but this was not specified. The absence of a clear statement about the basis on which costs were sought does not preclude the offer from being a reasonable offer, however the inclusion of the requirement for an apology, and the lack of specification about the content of that apology, mean that the defendant was not in a position to know what was required to settle the matter. The Concerns Notice does not constitute either a Calderbank offer or an Offer of Compromise pursuant to Order 26, but is nonetheless an offer that the Court can consider in determining the appropriate cost ruling in the case and where the interests of justice lie. At the very least it is an offer to negotiate.
42The purported ‘Offer of Compromise’ dated 24 August 2021 which was re-put on 14 and 18 October 2021, contained both the form of the apology sought, as well as additional terms including an undertaking by the plaintiff not to ‘criticise’ the plaintiff or his family members.
43The inclusion of terms that were not available as remedies at trial in my view take it outside the parameters of a formal ‘Offer of Compromise’ pursuant to Order 26 which would, pursuant to r26.08 ‘entitle’ the plaintiff to costs on an indemnity basis.
44The Court must be able to assess whether the plaintiff has done no less favourably by the Court order he obtained, than the offer he made to compromise his claim.
45He offered to compromise his claim for no damages and to bear his own costs, upon a retraction and removal of the defamatory articles, an apology in the terms he sought and certain undertakings relating to further publication.
46He obtained an order from the Court enjoining the defendant from further publication, and an award of damages in a substantial amount. It is not possible to directly compare the offer he made with the outcome he received, a difficulty noted by the Court of Appeal in Raelene Hardie v The Herald and Weekly Times and Andrew Rule [No 2].[4]
[4] [2016] VSCA 130 at paragraph [30]
47The Court does not know the value of an apology to the plaintiff, nor the value of an undertaking by the defendant not to engage in further criticism of him. Presumably, given that an apology was included in each of his offers, and he was prepared to settle his case without receiving any payment of compensation, the apology had a considerable value.
48The plaintiff’s settlement offers went beyond remedies that the Court could order. This is not uncommon and indeed is one of the advantages, if parties are willing to negotiate, of resolving a matter by settlement rather than negotiation.
49However calling an offer an ‘Offer of Compromise’ does not bring it within the parameters of Order 26. The offers of 14 and 18 October 2021 were open for short periods of time and did not comply with the terms of Order 26.03(3) which requires that it be open for not less than 14 days. None of the offers made were ‘Offers of Compromise’ within the meaning of Order 26 and do not attract an order for indemnity costs on that basis.
Section 40 Defamation Act 2005
50The plaintiff also relies on the operation of s40 of the Defamation Act 2005 which requires the Court to order costs on an indemnity basis if the defendant unreasonably failed to accept a reasonable offer or make a reasonable offer. Section 40(3) defines a settlement offer as an offer ‘that was a reasonable offer at the time it was made’ but does not provide that a settlement offer must be made with any particular formality, or that notice needs to be given that the offer is made in accordance with the Act.
51I am satisfied that all the offers made by the plaintiff were reasonable offers at the time they were made. None of them required the defendant to make any payment of damages, and the offers of 14 and 18 October 2021 sought costs only on a standard basis. Although the offer of 14 October 2021 was only open until 12.00pm on 15 October 2021 this was reasonable in circumstances where the trial was to commence on 18 October and considerable work would need to be undertaken if the matter did not settle. The offer of 18 October 2021 was made on the morning of the trial and was open until 12.00pm that day. Again this period is reasonable considering that the trial was about to start. However there is a distinction between not accepting a reasonable offer, and unreasonably failing to accept an offer.
52In the present case, all the offers required the defendant to make an apology. Whilst I accept that it was reasonable for the plaintiff to seek an apology, it does not automatically follow that it was unreasonable for the defendant to reject an offer that included such an apology.
53In the particular circumstances of this case, where a great deal of animosity had arisen between the plaintiff and the defendant in the context of an intimate relationship, and where the defendant was relying on a defence of truth, it is possible that payment of a monetary amount was, to the defendant, a preferable outcome, to offering an apology. Whilst to a pragmatic mind, this might be an unusual decision to make, I am not prepared to say it was unreasonable.
54However s40(2)(a) provides that the Court must also order indemnity costs if satisfied that the defendant unreasonably failed to make a settlement offer. This section is intended to prevent a party with significant financial advantage, such as a large media organisation, from forcing another party in an inferior financial position to court as a means of exerting pressure on that party not to pursue legitimate proceedings.
55Although those circumstances do not apply here, s40(2) must still operate to discourage parties in defamation proceedings from unnecessarily prolonging litigation in cases where reasonable attempts should be made to resolve the matter. The plaintiff says that the defendant’s offer to have the editor withdraw the articles was not a settlement offer within the terms of the Act and therefore cannot enable her to avoid the operation of 40(2)(a). In particular, the plaintiff points to the balance of the email in which she made the offer, where she proceeds to further defame the plaintiff to his solicitors and then says ‘If you all continue to harass me, I will then spare no effort in my counterattack. I am not afraid of blowing up this matter, or making it known to everyone in Melbourne….When that day comes you all will have to face the consequence’.
56Although the defendant’s language is rather more florid, the content is not all that dissimilar to the letter of the plaintiff’s solicitor dated 6 May 2020 which informed the defendant that she could ‘rest assured that our client will vigorously pursue you in this matter’, and that they had ‘firm instructions to issue proceedings against you in Court should you fail to comply with our client’s requests’.
57In the very particular circumstances of this case including the nature of the relationship between the parties, the publication of the articles on a social media platform and the time at which it was made, an offer to remove the articles amounted, in my view, to a reasonable offer.
Other grounds upon which the Court ought order indemnity costs
58Having found that the plaintiff’s offers do not give him an entitlement to indemnity costs pursuant to Order 26, and that the defendant did not unreasonably fail to accept or make a settlement offer, so as to enliven the requirement for the Court to award indemnity costs pursuant to s40, it is still open to the Court to make such an order.
59The Court is able to order indemnity costs if the conduct of the defendant in rejecting an offer was unreasonable.[5] It follows from my analysis above that I do not consider that the defendant’s conduct in rejecting any of the offers was unreasonable.
[5] See for example Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298 at paragraph [23] and the decision of Redlich J in Alijade and MKIC v OCBC [2004] VSC 351
60The Court is also able to consider other conduct in exercising its discretion, including conduct that caused undue delay to the trial and any breach of the Civil Procedure Act 2010. The trial was significantly longer than the estimate given and the defendant’s lack of preparation, particularly of her documentary evidence, was a cause of some of the delay. It was not until well into the trial that the defendant began doing the work required to mount the defence she so determinedly maintained. However I am mindful that any trial involving a self-represented litigant is likely to take longer than one where both sides are represented. The requirement by both sides for interpreters also significantly added to the length of the trial. Whilst the defendant’s conduct was at times frustrating, I am not satisfied that it ought to attract an indemnity costs order against her.
61Other conduct of the defendant has already been considered in making an award for aggravated damages. Accordingly I do not think it is necessary to further sanction the defendant for that conduct by making an indemnity costs order.
62The defendant is ordered to pay the plaintiff’s costs of and incidental to the proceeding on a standard basis, such costs to be taxed in default of agreement.
Application for an order pursuant to rule 75.07
63On 3 December 2021 the Court made orders that, amongst other things, the defendant is restrained from publishing or causing to be published or maintaining online the imputations or imputations to the same effect as those set out in the Statement of Claim in this proceeding.
64The defendant was in court at the time those orders were made.
65The plaintiff alleges that on 21, 23, 24 and 30 December 2021 the defendant made defamatory comments in the same or similar terms to those set out in the Statement of Claim on the social media platform WeChat. The plaintiff alleges that the defendant appears to be in contempt of the Court orders.
66At the hearing of the costs application, the plaintiff sought an order pursuant to 75.07 of the Rules which provides:
(1) The Court may, by order, direct the Registrar to apply by summons or originating motion for punishment of the contempt.
…
67The Court has a discretion as to whether to so direct the Registrar. Alternatively, where the contempt is committed by a party to a proceeding in the Court, an application on summons for punishment of the contempt can be made.
68In this case, through an oversight by the Court, the authenticated orders were not sent to the defendant until 2 February 2022. Accompanying those orders was a penal notice which informed her as follows:
If you disobey the order by doing an act which the order requires you to abstain from doing, you will be liable to imprisonment, sequestration of property or other punishment. Any other person who knows of this order and does anything which helps or permits you to breach the terms of this order may be similarly punished.
69Although the defendant was present at the hearing on 3 December 2021, she did not have legal representation and her interpreter was not present. Her alleged further publications occurred prior to her receiving the authenticated orders and the written penal notice.
70In those circumstances it is appropriate for the defendant to be given an opportunity to read and understand the penal notice. The application that the Court directs the Registrar to apply by summons for punishment of the contempt is dismissed. This decision ought not be interpreted by the defendant as a license to continue to make or maintain online defamatory imputations.
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