Smith v Lucht
[2015] QDC 325
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- Unreported Judgment
- Smith v Lucht[2015] QDC 325
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Smith v Lucht[2015] QDC 325
Smith v Lucht[2015] QDC 325
DISTRICT COURT OF QUEENSLAND
CITATION: | Smith v Lucht [2015] QDC 325 |
PARTIES: | Brett Clayton Smith (Plaintiff) v Kenneth Craig Lucht (Defendant) |
FILE NO: | 1983/13 |
DIVISION: | Civil |
PROCEEDING: | Application |
DELIVERED ON: | 14 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard and determined on the papers |
JUDGE: | Moynihan QC DCJ |
ORDER: |
|
CATCHWORDS: | DEFAMATION – PROCEDURE – COSTS – where the plaintiff’s claim in defamation against the defendant was dismissed after trial – where the defendant had made offers to settle on three separate occasions – whether offers constituted “settlement offers” under Defamation Act s 40 – whether costs ought to be awarded on an indemnity basis Uniform Civil Procedure Rules 1999 (Qld) r681(1) Defamation Act 2005 (Qld) s 40 |
COUNSEL: | C.K. Copley for the Plaintiff P.J. McCafferty for the Defendant |
SOLICITORS: | Brett Smith & Co for the Plaintiff Hallett Legal for the Defendant |
- [1]The plaintiff’s claim for $250,000 in damages for defamation was dismissed on 20 November 2015: see Smith v Lucht [2015] QDC 289.
- [2]The parties were at liberty to, and did, make written submissions within seven days as to who should pay the costs of and incidental to the trial.
- [3]Rule 681(1) of the Uniform Civil Procedure Rules 1999 provides: “Costs of a proceeding, including an application in a proceeding, are in the discretion of the court, but follow the event, unless the court orders otherwise.”
- [4]In addition, s 40 of the Defamation Act 2005 (the Act) provides:
(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 the proceedings 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.
- [5]The defendant made an offer to settle the matter on three occasions. On 6 September 2013, the defendant offered to pay $300. On 21 November 2014, the defendant offered to pay $2,500 plus costs on the standard basis in accordance with the Magistrates Court Scale. On 14 July 2015, the defendant offered to pay $7,500 plus costs on the Magistrates Court Scale for claims between $20,001 and $50,000. The terms of the offer were to remain confidential. The defendant also gave the plaintiff a written apology.
- [6]I find that only the offer made on 14 July 2015, ‘was a reasonable offer at the time it was made’ and constitutes a ‘settlement offer’ under the Act. I am satisfied, given the real issue in dispute, the nature of the imputation, the circumstances of the publication and the timing and quantum of the settlement offer, that the plaintiff unreasonably failed to accept the settlement offer made by the defendant on 14 July 2015.
- [7]Consequently, under s 40(2)(b) of the Act, I must, unless the interests of justice require otherwise, order costs of and incidental to the proceedings to be assessed on an indemnity basis. In assessing the ‘interests of justice’ I may, under s 40(1) of the Act, have regard to the manner in which the parties conducted their case and any other matter I consider relevant.
- [8]There was nothing in the way the defendant conducted the case that increased its complexity or the length of the trial, which ran only three days. The defendant abandoned the defence of qualified privilege just before the trial commenced, which should not be discouraged by adverse costs implications.
- [9]I order the plaintiff pay the defendant’s costs of and incidental to the trial on the standard basis up to 14 July 2015 and on an indemnity basis thereafter.
- [10]On 28 July 2015, Judge Reid reserved to me the costs of an application by the plaintiff to issue subpoenas for non-party disclosure. The application was unnecessary and was listed for hearing due in part to an error in the court registry. The defendant, on receiving notice of the application, appeared. At the hearing the plaintiff sought to withdraw the application and Judge Reid observed: “In my view it would have been apparent, consistent with the observations in the defendant’s submissions that the scheme of the UCPR is that subpoenas are issued on an ex-parte basis, that the defendant had no interest in the issuing of the subpoenas.”
- [11]I further order that each party bear their own costs of the application of 28 July 2015.