Zimmerman v Perkiss (No 3)

Zimmerman v Perkiss (No 3) was a case before the Supreme Court of New South Wales. The defendant, Perkiss, sought an order for costs on an indemnity basis following a successful preliminary hearing on the issue of serious harm under the Defamation Act 2005 (NSW). The plaintiff, Zimmerman, contested the application, arguing instead for each party to bear their own costs or, in the alternative, for costs to be assessed on the ordinary basis. The case involved complex issues around the role of the concerns notice provisions in relation to settlement discussions and the impact of Zimmerman's failure to respond to correspondence from Perkiss during the concerns notice period and to Perkiss’ subsequent Calderbank offer.

The court considered whether Zimmerman was goaded into suing Perkiss due to the publication in circumstances warranting a variation of the usual costs order. The court also examined whether a special costs order was necessary because of the "test case" nature of these proceedings. The judge found that the circumstances warranted an indemnity costs order for the defendant for the entire proceedings, based on the plaintiff's conduct and the broader implications of the case.

The final orders made by the court were that the plaintiff was to pay the defendant’s costs of these proceedings on an indemnity basis. This decision underscores the importance of active engagement in settlement discussions and the potential consequences of failing to do so, particularly in cases that may have broader implications beyond the immediate parties.