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- Unreported Judgment
Noone v Brown (No 4) QDC 155
DISTRICT COURT OF QUEENSLAND
Noone v Brown (No 4)  QDC 155
HEATHER MANSELL BROWN
District Court at Brisbane
23 August 2019
On the papers
1. I order that the defendant pay interest to the plaintiff fixed in the sum of $819.63.
2. I order that the defendant pay 50% of the plaintiff’s costs of and incidental to the action as agreed or assessed on the District Court Scale on the standard basis.
PROCEDURE- COSTS – who should pay the costs and the amount thereof- whether there should be indemnity costs- departing from the general rule- whether there should be costs of issues- whether costs should be on the Magistrates Court scale
DEFAMATION- DAMAGES – whether interest should be awarded on general damages
Acts Interpretation Act 1954 (Q) s 14B
Civil Liability Act 2011 (Q) s 58
Civil Proceedings Act 2003 (Q) ss 4, 60
Defamation Act 2005 (Q) s 40
Uniform Civil Procedure Rules 1999 (Q) rr 681, 684, 687, 697
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2)  QSC 64
Cerutti v Crestside Pty Ltd  1 Qd R 89;  QCA 33
Corliss v Gibbings-Johns  QCA 233
Dank v Nationwide News Pty Ltd  NSWSC 295
Davis v Nationwide News Pty Ltd  NSWSC 946
Nationwide News Pty Ltd v Weatherup  1 Qd R 19;  QCA 70
Oshlack v Richmond River Council (1998) 193 CLR 72;  HCA 11
Pamplin v Express Newspapers  1 WLR 116;  1 All ER 282
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Todrell Pty Ltd v Finch & Ors  2 Qd R 95;  QSC 386
Wagner v Harbour Radio Pty Ltd  QSC 267
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)  NSWCA 1111
P. McCafferty QC for the plaintiff
Solicitors for the defendant
Carter Newell for the plaintiff
GTC Lawyers for the defendant
- This is the costs judgment consequent on the decision given in Noone v Brown. There is also an issue on the question of interest.
- The plaintiff firstly submits there should be an award of interest on the damages awarded in accordance with Cerutti v Crestside Pty Ltd. It is submitted that the appropriate rate of interest is 3% per annum and interest should be awarded from the date of the posts i.e. October 2017, until the date of judgment i.e. 2 August 2019. Interest is calculated in the total sum of $819.63.
- As to the costs order, it is submitted that the general rule should apply.
- It is submitted that s 40 of the Defamation Act 2005 (Qld) provides a broad discretion. It allows the court to take into account the way in which the parties conducted their cases. It is submitted it is relevant that there were late applications to amend pleadings and a piecemeal approach to calling witnesses by the defendant. It is submitted this caused adjournments and delay - to the plaintiff’s financial detriment. It is submitted that the trial ought to have gone for four days but was heard over eight days. It is further submitted that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer. It is submitted that the reality is the defendant defamed the plaintiff and made no offer reflecting this. The plaintiff heavily relies on Davis v Nationwide News Pty Ltd. It should have been apparent to the defendant that the plaintiff would have recovered something. A walkaway offer is no offer at all.
- In these circumstances, the plaintiff submits for costs of the proceeding on an indemnity basis.
- With respect to the suggestion that Magistrates Court costs should be awarded, the plaintiff relies heavily on the decision of Nationwide News Pty Ltd v Weatherup. Applegarth J took into account that an election for a jury trial may have adverse cost consequences for that party. It is critical to remember that the defendant elected for trial by jury and maintained this election until well after the proceeding had been set down for trial. Indeed it was only abandoned at the last review before the trial commenced. At no time did the defendant request for the matter to be transferred to the Magistrates Court, let alone abandon her election for a jury trial. She was content to litigate the matter in the District Court. The proceedings were factually and legally complex and procedurally complicated, and in those circumstances, the matter should be approached on the basis adopted in Weatherup.
- The plaintiff also relies on two affidavits of Brett Heath. The first was filed by leave in the court and was sworn on 30 July 2019. In this affidavit, Mr. Heath exhibits a concerns notice which was sent to the defendant on 17 October 2017 requesting an offer of amends, a total sum of $2,500 in costs and $10,000 in compensation. Of course, all of the imputations were relied upon at that point. Exhibit BJH2 is a further letter dated 24 July 2018 from Carter Newell to the defendant offering to settle the case on the basis that the defendant pay $25,000 in full and final settlement of the claim plus costs of and incidental to the action.
- In a further affidavit dated 7 August 2019, Mr. Heath refers to an offer made by the defendant’s former solicitors, Finemore Walters & Story, on 8 March 2019 in which the defendant offered to walk away. Mr. Heath replied by letter dated 11 March 2019 which noted, “ we consider that, unless your client’s offer is coupled with a payment of a sum of money to compensate our client for the damage caused to her reputation and respect of the legal fees incurred in prosecuting this action, the offer made by your client is unlikely to be of any interest to our client”. In a letter dated 13 March 2019, Finemore Walters & Story advised that the defendant had instructed she was not agreeable to a settlement involving money nor an apology. There was a further file note dated 27 May 2019, in which Mr. Heath notes that there was no discussion with Mr. Jordaan about any settlement.
- The defendant relies on the offer made by Finemore Walters & Story dated 8 March 2019 in which an offer was made that each party walk away and the defendant sign a worded non-disparagement (with wording to be agreed) and which would outline that the defendant would not make any further comments about the plaintiff.
- The defendant in her submissions submits there should not be an award of interest on the damages by reason of the Civil Proceedings Act 2003 (Qld). In any event it submits the court had an unfettered discretion to decide on the question of interest and it should not be awarded.
- As to the question of costs, it is submitted that it is relevant that the court found the plaintiff was incompetent, unfit and was affected by alcohol on duty on a number of occasions. It was also relevant that the plaintiff was found to be controlling, micromanaging and bullying and was prepared to make false allegations against people with whom she disagreed. It was accepted the court found the plaintiff was not dismissed from her previous employment because of problems with alcohol or drugs going missing. It is submitted that the award made to the plaintiff pales into insignificance if one has regard to the other findings of the court. It is submitted the plaintiff failed to clear her reputation and, in those circumstances, the plaintiff should be ordered to pay the costs of the proceedings. It was also relevant that she engaged in a blatant and flagrant scheme to mislead the court about her previous dismissal.
- It is submitted that the plaintiff should pay costs of the proceedings on an indemnity basis by reason of s 40 of the Defamation Act 2005 (Q). It is further submitted that it is relevant that the court found the plaintiff to be misleading and deceptive in her evidence. It is submitted that the deception coupled with material nondisclosures lead to the trial being prolonged. As a result of the nondisclosures, the lawyers for the defendant had to issue subpoenas to witnesses to acquire the relevant evidence at cost. As a result the lawyers for the defendant had to request multiple short adjournments (for example the plaintiff failed to disclose the redundancy letter). It is submitted the lawyers for the plaintiff interfered with the defendant’s attempts to obtain other evidence and documents and the plaintiff failed to disclose the dismissal letter from Freedom after it became available by subpoena and failed to consent to its tender.
- It is submitted that counsel for the plaintiff raised unnecessary objections to numerous questions. Ultimately it is submitted that in this case the plaintiff did not conduct it’s case in a reasonable way; there was evidence of misconduct in that the plaintiff mislead the court and there was undue prolongation of the trial and an omission to make material disclosure.
- As to the settlement offers and negotiations, it is submitted that the defendant made a reasonable settlement offer in all of the circumstances. The defendant offered to settle the matter by both parties walking away with no order as to costs with a written agreement outlining that no further comments would be made unless compelled by law. The plaintiff rejected the offer, highlighting that unless there was payment of a sum of money, the offer was unlikely to be of interest to the plaintiff and further there needed to be an apology withdrawing the allegations. In view of the later findings of the court this offer was unreasonable. It is submitted it was not reasonable for the plaintiff to believe, prior to the commencement of the trial and at the time of the settlement offer, the plaintiff would have achieved a greater degree of success.
- The defendant also submits in reliance on Wagner v Harbour Radio Pty Ltd that the mere fact that the offer did not include an apology does not constitute an unreasonable failure to make a settlement offer. It was accepted by the court that for an offer to be reasonable it does not have to include an apology. The defence also relies on Pamplin v Express Newspapers, which it says is authority for the proposition that where justification is relied on by a defendant it may be that the defendant reduces the damages, perhaps almost at vanishing point. The defendant further relies on Dank v Nationwide News Pty Ltd and submits that statements about damages should also be applied to a consideration on costs. In the circumstances it is submitted the plaintiff should be ordered to pay the costs of the proceedings on an indemnity basis.
- Alternatively it is submitted that r 697 of the UCPR applies and the plaintiff should only be ordered costs on the Magistrates Court scale. It is submitted that the plaintiff chose to institute the proceedings in the District Court and although the defendant initially elected to proceed with trial by jury, she did not proceed with that election due to financial reasons. The plaintiff maintained until the end of the trial that the award was between $150,000 and $200,000 and thus the defendant did not elect to apply to transfer the proceedings to the Magistrates Court. Alternatively, it is submitted that the appropriate order should be that the defendant pay the sum of $19,853.60 which is calculated on the Magistrates Court scale.
- By way of reply the plaintiff purported to correct propositions of law advanced by the defendant. It is first rejected that the plaintiff prolonged the length of the trial by taking unnecessary objections. It is submitted the construction put forward by the defendant as to s 40 of the Defamation Act is wrong.
- It is submitted that reliance on Pamplin and Dank is misplaced as those cases involved mitigation of damages not costs. It is further submitted that submissions as to Weatherup and Wagner are incorrect.
- UCPR r 681 provides:
“681 General rule about costs
- (1)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.
- (2)Subrule (1) applies unless these rules provide otherwise.”
- This is the starting point. But over and beyond this, s 40 of the Defamation Act 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 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.”
- Further, UCPR rr 684 and 687 provides:
“684 Costs of question or part of proceeding
- (1)The court may make an order for costs in relation to a particular question in, or a particular part of, a proceeding.
- (2)For subrule (1), the court may declare what percentage of the costs of the proceeding is attributable to the question or part of the proceeding to which the order relates.
687 Assessed costs to be paid unless court orders otherwise
- (1)If, under these rules or an order of the court, a party is entitled to costs, the costs are to be assessed costs.
- (2)However, instead of assessed costs, the court may order a party to pay to another party—
- (a)a specified part or percentage of assessed costs; or
- (b)assessed costs to or from a specified stage of the proceeding; or
- (c)an amount for costs fixed by the court; or (d) an amount for costs to be decided in the way the court directs.”
- Finally, UCPR r 697 provides:
“697 Costs of proceeding in wrong court
- (1)Subrule (2) applies if the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court.
- (2)The costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court, unless the court orders otherwise.
- (3)Subrule (4) applies if the only relief obtained by a plaintiff in a proceeding in the Supreme Court is relief that, when the proceeding began, could have been given by the District Court, but not a Magistrates Court.
- (4)The costs the plaintiff may recover must be assessed as if the proceeding had been started in the District Court, unless the court orders otherwise.”
- In Oshlack v Richmond River Council, no order as to costs was made by the primary judge. The High Court reinstated this order. Gaudron and Gummow JJ noted at  there is no absolute rule that in the absence of disentitling conduct a successful party is to be compensated by the unsuccessful party. Further, there is no rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party. Also their Honours noted at  that costs orders are not made to punish an unsuccessful party but where there is some relevant “delinquency” by the unsuccessful party an order for costs may be made on an indemnity basis.
- Kirby J (part of the majority) noted the wide discretion of a judge on the question of costs. His Honour also noted that there was no absolute rule that a successful party receive its costs.
- On the point of costs of issues, Chesterman J in Todrell Pty Ltd v Finch & Ors, noted that r 684 provided a wider discretion than the previous rule in Queensland. It may be appropriate to award costs of a particular question or part of a proceeding where that matter is definable and severable and had occupied a significant part of the trial.
- As to the recovery of indemnity costs, in Rosniak v Government Insurance Office Mason P held that usually the court required some evidence of unreasonable conduct, albeit it need not rise as high as vexation in determining whether or not indemnity costs should be awarded. It has been noted that an award of indemnity costs is exceptional.
- Flanagan J in Wagner and Ors v Harbour Radio and Ors referred to the need for there to be a special or unusual feature in order to award indemnity costs. His Honour also noted that such costs are not to penalise but to more fully compensate the successful party.
- In Weatherup the plaintiff recovered $100,000 in the Supreme Court of Queensland. Applegarth J at  noted that the provisions of s 40 of the Defamation Act do not displace the court’s power to award indemnity costs for some other reason, or displace the rules of court by which parties can obtain some protection in respect of costs by making formal offers to settle. His Honour noted further at  that the focus of s 40(2)(a) is to focus on a party’s conduct and in particular, a defendant’s unreasonable failure to make a settlement offer or agree to a settlement offer proposed by the plaintiff. Further at , s 40 coexists with other provisions governing costs, including the power to order costs on an indemnity basis in appropriate circumstances.
- Applegarth J noted at  that r 697(2) does not identify the factors which might justify an order which is otherwise the starting point under the rule. He accepted at  that a party’s election for a jury trial may have adverse consequences for the party, as was recognised by the trial judge. At  he noted that the choice of the plaintiff to have a jury decide the question of defamatory meaning should not disentitle the plaintiff to an assessment of costs on the District Court or Supreme Court scales simply because the monetary award assessed by the judge fell within the monetary jurisdiction of the Magistrates Court.
- Further on the question of indemnity costs, in Davis v Nationwide News Pty Ltd, McClellan CJ at CL took into account that it should have been apparent to the defendant at the time of the publications that the plaintiff had been defamed. At the least, a reasonable offer at the time would have included an offer of apology. The defendant should have appreciated the plaintiff would recover a sum for her damage. It was held that the special costs rules in the Act (Defamation Act) are directed towards early settlement of the proceedings. If the failure by a defendant to make a reasonable offer means that proceedings continue to trial and the plaintiff obtains a judgment, the fact that he or she files in relation to some of the pleaded imputations will be of limited relevance. In the circumstances of that case, a failure in respect of some of the pleaded imputations was not sufficient reason in the interests of justice to deprive her of an award of indemnity costs for the entire proceeding.
- In the present case, I have determined in the exercise of my discretion that the plaintiff should have one half of her costs on the standard basis.
- I consider these costs ought to be on the District Court scale. In my opinion, it is highly relevant the defendant elected for trial by jury, which election was not abandoned until shortly before the trial. In that circumstance, it was understandable that the matter proceeded in the District Court. In this regard I pay full regard to the principles expressed in Weatherup.
- I accept the plaintiff’s submissions as to the non-applicability of Dank and Pamplin. Those cases related to the question of damages.
- I also consider in light of my ultimate findings, and the fact it was untrue to suggest the plaintiff was dismissed because of alcohol issues and drugs going missing, the defendant ought to have offered financial compensation prior to trial.
- I did not consider the plaintiff’s objections to be unwarranted bearing in mind the state of the pleadings.
- However, I do not think this is a case where the plaintiff should recover either indemnity costs or all of her costs for the trial.
- Therefore while section 40(2)(a) of the Defamation Act may have been engaged, I consider it is in the interests of justice to make a different order.
- My reasoning is as follows.
- First, at all material times the plaintiff continued to rely on all imputations. She was wrong to do so. There was a substantial body of evidence which enabled the court to find that the defendant proved the defences relied on with respect to the failed imputations.
- I particularly refer to paragraph 8 of her letter dated 17 October 2017 to the defendant.
- Second, as the matter got closer to trial, the plaintiff’s offer of $25,000 was in excess of the award which I made. Further, there was no suggestion of all of the imputations not being relied upon.
- Third was the conduct at the trial. It is true that I found that three defamatory imputations succeeded (i.e. the reasons for dismissal) however it must be borne in mind that the plaintiff failed on significant defamatory imputations, namely that she was incompetent, that she was unfit to care for the elderly or discharge the responsibilities of director of nursing at MCRV and she was on a number of occasions affected by alcohol whilst on duty. These imputations required evidence for, in my opinion, at least half of the trial. I consider that if those imputations had not been relied upon, then the trial would have lasted about three days, bearing in mind it was easy to prove that the reasons for dismissal from Freedom (now Aveo) were incorrect.
- It was the addition of the failed imputations which led to significant evidence about incompetence, unfitness, bullying and alcohol use in the trial.
- Having said that, in my assessment, the defendant’s attempts to amend their pleadings late and to lead irrelevant evidence which led to significant objections lengthened the trial in my opinion by about a day.
- In those circumstances, I consider that if the trial had solely proceeded on the successful imputations, it may have gone for about three to four days. I consider the pursuit of the unsuccessful issues significantly lengthened the trial.
- I do not consider indemnity costs should be awarded in this case. Although the defendant made no monetary offer, this must be considered in the context of the failed imputations alleged (which as I have said were significant).
- In all of the circumstances, in the exercise of my discretion, I have determined that the defendant ought to pay 50% of the plaintiff’s costs of and incidental to the action on the District Court Scale on the standard basis.
- I finally turn to the question of interest.
- Section 60 of the Civil Liability Act 2003 (Qld) precludes the award of interest on general damages.
- However it is my view the Act does not apply to defamation proceedings. Section 4(1) provides that the Act applies to any civil claim for damages for harm. Harm is defined in the dictionary as “means harm of any kind including the following:
- (a)personal injury;
- (b)damage to property;
- (c)economic loss”.
- “Personal injury” is defined in the dictionary as including fatal injury, pre-natal injury, psychological or psychiatric injury and disease.
- Bearing in mind the use of the term “includes” I turn to the explanatory notes to the Bill.
- In the explanatory notes it was noted “[t]he main purpose of this Act is to further facilitate the ongoing affordability of insurance through clarification of some basic principles within the substantive law and sustainable award to damages for personal injury”.
- Further it was noted “Clause 4 sets out the application of the Act. It applies to all claims for damages for harm. Harm is defined to include all possible types of loss, including personal injury, damage to property and pure economic loss other than those excluded by clause 5. The clause is drafted to include, through the definition of ‘claim’, all breaches of a duty of care in tort, those duties in contract that, whether express or implied, can be considered the same effect as a duty to take reasonable care at the same time as would be found in tort, and any other duty, whether expressed under statute or otherwise, that likewise can be considered of the same effect as a duty to take reasonable care.”
- Further in the second reading speech on the Civil Liability Bill on 11 March 2003 the then Attorney-General noted that the Bill “ensures personal responsibility and common sense is reintroduced into the law of negligence.”
- As was noted in Corliss v Gibbings-Johns many of the Act’s provisions are based on the recommendations made in the Ipp Report. Justice Ipp recommended legislation in respect of “any claim for damages for personal injury or death resulting from negligence, regardless of whether the claim is brought in tort, contract, under statute or any other cause of action.”
- In my view the aim of the Act was not to contemplate damages for defamation. Indeed I am fortified in that view because in Nationwide News Pty Ltd v Weatherup interest was awarded.
- I propose to award interest under section 58 of the Civil Proceedings Act 2011 (Q).
- I therefore order as follows:
- The defendant pay to the plaintiff the sum of $819.63 for interest.
- The defendant is to pay 50% of the plaintiff’s costs of and incidental to this action as agreed or assessed on the District Court scale on the standard basis.
 QDC 133.
Exhibit W for identification.
 1 Qd R 89 at ;  QCA 33.
 NSWSC 946 at -.
 1 Qd R 19 at ;  QCA 70.
Exhibit Z for identification.
Exhibit BJH1 attached to Exhibit Z.
Attached to Exhibit Z.
Exhibit AA for identification.
Exhibit BJH3 attached to Exhibit AA.
Exhibit BJH4 attached to Exhibit AA.
Exhibit X for identification.
Part of Exhibit X for identification.
 QSC 267 at -.
 1 WLR 116;  1 All ER 282.
 NSWSC 295 at -.
Exhibit Y for identification.
(1998) 193 CLR 72;  HCA 11 at -.
(1998) 193 CLR 72;  HCA 11 at .
 2 Qd R 95;  QSC 386 at .
Order 91, r 3 of the former Rules of the Supreme Court of Queensland.
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)  NSWCA 1111 at .
(1997) 41 NSWLR 608 at page 616.C.
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2)  QSC 64 at .
 QSC 267 at .
 NSWSC 946 at -.
Exhibit R for identification para 259.
Exhibit B for identification.
Section 14B of the Acts Interpretation Act 1954 (Q).
Explanatory Notes to Civil Liability Bill 2003 page 1.
Explanatory Notes to Civil Liability Bill 2003 page 5.
Queensland Parliamentary Debates 11 March 2033 page 367.
 QCA 233 at .
Review of the Law of Negligence Final report September 2002 para 2.3.
 1 Qd R 19;  QCA 70.
- Published Case Name:
Noone v Brown (No 4)
- Shortened Case Name:
Noone v Brown (No 4)
 QDC 155
23 Aug 2019