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  • Unreported Judgment

Hallam v Ross (No 3)

 

[2012] QSC 421

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Hallam v Ross (No 3) [2012] QSC 421

PARTIES:

CRAIG HALLAM

(plaintiff)

v

DONALD ROSS

(defendant)

FILE NO:

BS643/10

DIVISION:

Trial

PROCEEDING:

Trial

DELIVERED ON:

21 December 2012

DELIVERED AT:

Brisbane 

HEARING DATES:

Written submissions on 17, 18 December 2012

JUDGE:

Margaret Wilson J

ORDERS:

1)Judgment for the plaintiff in the amount of $18,750.00 together with interest in the sum of $1,968.75;

2)that the defendant, whether by himself or his servants or agents, be restrained from publishing, or causing to be published, matter of and concerning the plaintiff alleging that the plaintiff is a criminal, has colluded in a criminal way with two other arborists, has falsified a Government certificate and is an arborist whose work is an example of world’s worst practice, or allegations having similar effect; and

3)that the defendant pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, to be assessed on the standard basis.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF ACTION – where plaintiff brought a successful action for defamation – where allowance was made for the mitigating effect of two of the defamatory imputations being substantially true – whether the interests of justice require that costs be awarded on the standard or indemnity basis

Defamation Act 2005 (Qld), s 40

Hughes v Western Australian Cricket Association Inc (1986) ATPR 48-135, cited.

COUNSEL:

RJ Anderson for the plaintiff

DP O’Gorman SC for the defendant

SOLICITORS:

Bennett & Philp as town agents for Winter Hilditch & Fotheringham for the plaintiff

McMillan Legal for the defendant

  1. MARGARET WILSON J:  The parties have made written submissions on the form of the orders and on costs.
  1. They agree that orders should be made in the following terms –

 

“1. Judgment for the plaintiff in the amount of $18,750.00 together with interest in the sum of $1,968.75;

 

2.The defendant, whether by himself or his servants or agents, be restrained from publishing, or causing to be published, matter of and concerning the plaintiff alleging that the plaintiff is a criminal, has colluded in a criminal way with two other arborists, has falsified a Government certificate and is an arborist whose work is an example of world’s worst practice, or allegations having similar effect.”

  1. The outstanding issue is costs.
  1. The plaintiff’s claim was based on the publication of two emails containing defamatory statements. His claim was successful, but in the assessment of damages allowance was made for the mitigating effect of two of the imputations in the second email being substantially true.
  1. Counsel for the plaintiff asked for an order that the defendant pay the plaintiff’s costs, including reserved costs, on the indemnity basis. Counsel for the defendant submitted that the plaintiff should recover only 60% of his costs, and that they should be assessed on the standard basis.
  1. Section 40 of the Defamation Act 2005 (Qld) provides –

   “40 Costs in defamation proceedings

(1)In awarding costs in defamation proceedings, the court may have regard to—

(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and

(b)any other matters that the court considers relevant.

(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—

(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to theproceedings to be assessed 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; or

(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

(3)In this section—

                      settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.

  1. The plaintiff’s solicitor Mr Fotheringham has deposed that before the commencement of the proceeding –

 

  1. on 25 May 2009 the plaintiff by his solicitors sent the defendant a Concerns Notice within the meaning of s 14 of the Defamation Act;
  1. on 4 August 2009 the plaintiff by his solicitors sent the defendant a further Concerns Notice.

On each occasion the plaintiff invited the defendant to offer to make amends, and demanded that he not publish further material of a defamatory nature.

  1. The defendant never made a settlement offer, either before or after the proceeding was commenced.
  1. Counsel for the plaintiff submitted that in all the circumstances of the case the defendant’s failure to make a settlement offer was unreasonable. It followed, he submitted, that the Court must award costs on the indemnity basis unless the interests of justice require otherwise.
  1. The Concerns Notices were wider in scope than the subsequent litigation. The first complained of a bundle of emails sent to a host of recipients. It cited two as examples – that of 29 April 2009 (one of those on which the plaintiff subsequently sued) and another of 8 April 2009. The second contained a list of 10 emails (including the two sued on); the list was said not to be exhaustive. There was no exact correspondence between the imputations alleged in the Concerns Notices and those alleged in the litigation. In the context of the subsequent litigation, I do not consider that the plaintiff’s failure to respond to the Concerns Notices by an offer to make amends was itself unreasonable.
  1. However, I consider that the defendant was unreasonable in not making an offer to settle once the litigation was commenced and the limited scope of the plaintiff’s claim was apparent. The defences of substantial truth never had any real prospect of success except in relation to two imputations. At trial the defendant purported to reserve rights to speak with police, the CMC, the Parliamentary Committee of the CMC and politicians at State and local government level without limitation on what he might say to them, before ultimately conceding that the plaintiff was entitled to a permanent injunction.
  1. Counsel for the defendant submitted that the plaintiff’s costs should be reduced because the two imputations were found to be substantially true.
  1. In Hughes v Western Australian Cricket Association Inc[1]Toohey J said –

“A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them.  In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.”

In that case the successful party was awarded only 75% of his costs.

  1. As counsel for the defendant submitted, the finding that two of the imputations borne by the second email were substantially true arose largely out of the plaintiff’s stating in his report of 21June 2006 that the tree had a SULE of 100+ years, and the accuracy or otherwise of that statement took up a considerable part of the hearing. He submitted that the 37.5% reduction in the damages on account of those imputations being substantially true afforded a reasonable approximation of the extent to which the plaintiff’s costs should be reduced because of this finding.
  1. In all of the circumstances of this case, the defendant’s partial success is, in my view, a factor relevant to what costs should be awarded to the plaintiff. I do not accept that the reduction in damages should be used as a yardstick for the reasonable approximation of the amount by which the plaintiff’s costs should be reduced. However, I am satisfied that the interests of justice require that the costs be awarded on the standard basis rather than the indemnity basis.
  1. There should be an order that the defendant pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, to be assessed on the standard basis.

Orders

  1. (1)Judgment for the plaintiff in the amount of $18,750.00 together with interest in the sum of $1,968.75;

    (2)that the defendant, whether by himself or his servants or agents, be restrained from publishing, or causing to be published, matter of and concerning the plaintiff alleging that the plaintiff is a criminal, has colluded in a criminal way with two other arborists, has falsified a Government certificate and is an arborist whose work is an example of world’s worst practice, or allegations having similar effect; and

    (3)that the defendant pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, to be assessed on the standard basis.

Footnotes

[1] (1986) ATPR 48-135 at 48,136-7.

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Editorial Notes

  • Published Case Name:

    Hallam v Ross (No 3)

  • Shortened Case Name:

    Hallam v Ross (No 3)

  • MNC:

    [2012] QSC 421

  • Court:

    QSC

  • Judge(s):

    M Wilson J

  • Date:

    21 Dec 2012

Litigation History

No Litigation History

Appeal Status

No Status