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Lin v Fairfax Digital Australia & New Zealand Pty Ltd[2025] QDC 51

Lin v Fairfax Digital Australia & New Zealand Pty Ltd[2025] QDC 51

DISTRICT COURT OF QUEENSLAND

CITATION:

Lin v Fairfax Digital Australia & New Zealand Pty Ltd [2025] QDC 51

PARTIES:

JOHNSON LIN

(plaintiff)

v

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD

(defendant)

FILE NO:

4124 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme court of Queensland at Brisbane

DELIVERED ON:

10 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2024

JUDGE:

Burnett AM, DCJ

ORDER:

The Plaintiff pay the Defendants costs of and incidental to the proceeding on the standard basis until 18 October 2022 and on and from that date on the indemnity basis

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where the defendant seeks indemnity costs in reliance on s 40 Defamation Act 2005 (Qld) and, in the alternative, on the principles in Calderbank v Calderbank – where the defendant made settlement offers prior to trial – where the defendants failed to make a “settlement offer” because their settlement offer at the time was an “unreasonable offer”- – where the Plaintiff neither responded to the offer nor sought any extension of time to consider these offers – where it was found that the Plaintiffs failure to accept  the defendants fifth offer was unreasonable in all the circumstances - whether the Plaintiff should pay the defendant’s costs on the indemnity basis

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 360-361A

Defamation Act 2005(QLD), s. 40

CASES:

Calderbank v Calderbank [1976] FAM 93, considered

Bill Karageozis as trustee for the bankrupt estate of Siobham Lamb v Sheldon Sherman [No. 2] [2024] QCA 12 at [4], cited

Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 at [58], cited

Jensen v Nationwide News Pty Ltd [2019] WASC 451 at [50], cited

Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 at [46]

SMEC Testing Servies Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37],  considered

Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351 Per Redlich J, cited

Hazeldene’s Chicken Farm v VWN (No. 2) [2003] VSCA 298 at 23, considered

S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (no 2) [2020] QSC, cited

McGee v Independent Assessor and Anor [no 2] [2024] QCA 7 Bond J, considered

House v The King (1936) 55 CLR 499 at 505, cited 

COUNSEL:

N Ferret KC and J T Sargent for the Plaintiff

P McCafferty KC and T Pepper for the Defendant

SOLICITORS:

Ancora Lawyers for the Plaintiff

Banki Haddock Fiora for the Defendants

Introduction

  1. [1]
    Following the trial, a jury delivered a unanimous verdict deciding that an article published by the respondent, Fairfax Digital Australia & New Zealand Pty Ltd in its publication, the Brisbane Times on 30 July 2017 did not convey any of any five defamatory imputations alleged by the plaintiff. Its success was resounding.  As the defendant submits, and I agree, that matter was fundamental to the plaintiff’s case on liability.  So much was evident given the framing of the questions put to the jury.  The first question of seven questions for consideration by the jury directed them to determine whether or not the article published on the Brisbane Times website conveyed to the reasonable ordinary reader any of five possible meanings.  In respect of each of those meanings or imputations the jury answered, “no”.  Accordingly, it was unnecessary for the jury to proceed to consider whether any particular meaning was defamatory of the plaintiff; whether the variant meaning in respect of any such defamatory imputation was substantially true; whether in turn any such defamatory imputation was more injurious to the plaintiff’s reputation than the variant meaning; whether the defendant believed on reasonable grounds that any person who read the article would have an interest in receiving information on various subjects; whether the defendant’s conduct in publishing the article was reasonable in the circumstances; and, finally, whether the defendant was actuated by malice in publishing the article.
  2. [2]
    In the circumstances the defendant seeks orders for costs on the indemnity basis.  The plaintiff does not challenge the defendant’s claim for costs following the event however contends that such costs should not be allowed for on the indemnity basis.

Applicable principles

  1. [3]
    The parties are in general agreement concerning the applicable law.  The general rule about costs is that they are in the discretion of a court but follow the event unless the court otherwise orders.  It is agreed that neither parties made “rules” offer made by either party under UCPR rr 360-361A. 
  2. [4]
    The application for indemnity costs falls to be determined by reference s. 40 of the Defamation Act 2005 or the principles of Calderbank v Calderbank [1976] Fam 93. The only distinction between either order is a s. 40 order covers all costs of the proceeding. Whereas, concerning indemnity costs, the defendant contends costs should be made from the date of the first of the six offers.
  3. [5]
    Section 40 of the Defamation Act relevantly provides:

40 Costs in defamation proceedings

  1. In awarding costs in defamation proceedings, the court may have regard to—
  1. 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
  1. any other matters that the court considers relevant.
  1. Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—

…

  1. 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.
  1. 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. [6]
    The defendant submits that the costs regime provided for by s. 40 is intended to promote a speedy and non-litigious method of resolution of disputes and to avoid protracted litigation where possible.  The provision obliges parties in defamation proceedings to take a reasonable approach to negotiations for the settlement of those proceedings. The sanction against such a failure is the risk of an award of indemnity costs.  That was implicit in Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sheldon Sherman [No. 2] [2024] QCA 12 at [4] and as discussed in other authorities addressing that provision as it exists in other jurisdictions i.e. Hyndes v Nationwide News Pty Ltd; Nationwide News Pty Ltd v Hyndes [2012] NSWCA 349 at [58]; Jensen v Nationwide News Pty Ltd [2019] WASC 451 at [50] and Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 at [46], Defamation Act s. 40 requires a two-staged process of first identifying whether the offer was a reasonable offer at the time it was made and, if so, whether the plaintiff unreasonably failed to accept such an offer made by the defendant. That process is however subject to an overriding requirement that without limiting the court’s regard to the way in which the parties conducted their case and other matters the court considers relevant, the court must order costs be assessed on the indemnity basis if the plaintiff unreasonably fails to accept a “settlement offer” made, “unless the interests of justice require otherwise”.
  2. [7]
    As the offer under consideration was also made in accordance with the principles in Calderbank v Calderbank (supra) the principles informing such an offer also fall for consideration.
  3. [8]
    The principles governing a Calderbank offer vary slightly to those applicable to offers under s 40.  Materially it is accepted the Calderbank v Calderbank principles invite a consideration of only the second limb of s. 40, that is whether the rejection of the offer was unreasonable. The focus is upon the unreasonableness of the rejection of an offer, not the reasonableness of the offer made.
  4. [9]
    Concerning Calderbank offers Giles JA stated in SMEC Testing Services Pty Ltd v Campbelltown City Council[1],

“… in the end the question is whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs …”.

That approach informed the consideration of the issue by Redlich J in Overseas Chinese Banking Corporation v Richfield Investments Pty Ltd[2] where his Honour stated the weight of authority:

“… strongly points to an approach that involves no preconceptions about when the rejection of a Calderbank offer should lead to the making of a special costs order.  It will do so where it is concluded that the rejection of the offer was unreasonable.”

  1. [10]
    Subsequently, in Hazeldenes’s Chicken Farm v VWA (No. 2)[3], a case considering Calderbank offers the court observed,

“In our view, these competing considerations can be sufficiently accommodated by applying a test of (un)reasonableness.  The critical question is whether the rejection of the offer was unreasonable in the circumstances.”

Their Honours proceeded at paragraph [25] to list a number of discretionary factors which might be taken into consideration.  They include:

  1. The stage of the proceedings at which the offer was received;
  2. The time allowed to enforce the offeree to consider the offer;
  3. The extent of the compromise offered;
  4. The offeree’s prospects of success, assessed as at the date of the offer;
  5. The clarity with which the terms of the offer were expressed; and
  6. Whether the offer foreshadowed an application for indemnity costs in the event of the offerees rejecting it.

The Course of the Proceedings

  1. [11]
    The relevant chronology of proceedings is as follows:

10 May 18

Claim and Statement of Claim (SoC)

11 Jun 18

Defence

8 Nov 18

Amended Statement of Claim (ASoC)

9 Jul 19

Offer # 1

21 Oct 19

Offer # 2

15 May 20

Further Amended Statement of Claim( FASoC)

4 Aug 20

Offer #3

4 Jun 21

Offer # 4

12 Aug 21

Strike out application

26 Aug 21

Second Further Amended Statement of Claim ( SAFSoC)

7 Mar 22

Amended defence

11 Apr 22

Further Amended Defence

31 Mar 22

Third Further Amended Statement of Claim (TFASoC)

6 Oct 22

Offer # 5

22 Oct 22

Reply

20 Feb 24

Offer # 6

Nov 24

Trial and verdict

  1. [12]
    For reasons related to the consideration of offers at the time each was forthcoming it is relevant to appreciate where offers came in the course of the progress of the proceedings.

First and Second Offers

  1. [13]
    The ASoC was filed on 8 Nov 18 addressing some of the technical complaints made of the SocC.
  2. [14]
    In the ASoC it was alleged that by their natural and ordinary meaning the words of the article meant and were understood to mean to the ordinary reader of them that the plaintiff:
    1. Arranged to meet Mr Pisasale at a licensed brothel on the Gold Coast in 2015;
    2. Plied Mr Pisasale with prostitution services for the purpose of persuading Mr Pisasale to abuse his powers, misuse council resources or involve himself in illegal prostitution;
    3. Plied  Pisasale with prostitution services for the purpose of persuading Pisasale to make some decision to bestow an advantage on the plaintiff;
    4. Plied Pisasale with prostitution services for the purpose of persuading Pisasale to facilitate the granting of permission to up to build 1800 homes on land the company owned by the plaintiff’s family company.

The plaintiff alleged each of those imputations were untrue and defamatory of him.

  1. [15]
    It was alleged that those matters were untrue but in fact on an occasion which the plaintiff could not remember:
    1. The plaintiff did have dinner with Mr Pisasale at a restaurant on the Gold Coast; 
    2. At the end of dinner Mr Pisasale asked the plaintiff to direct him to a brothel mentioned in the article namely LuvAsian;
    3. The plaintiff complied with that request by driving to the brothel while Mr Pisasale followed behind in his mayoral vehicle;  and,
    4. The plaintiff did not meet Mr Pisasale at the brothel or otherwise communicate with him once they had reached the brothel. 
  2. [16]
    Further the plaintiff maintained:
    1. He did not on the occasion in question enter the brothel;
    2. He had not visited the brothel on any other occasion or attended any other establishment either on his own or in company with anyone including Mr Pisasale; 
    3. He never sought corruptly to obtain any advantage from Mr Pisasale; 
    4. He has never sought or in fact provided prostitution services to Mr Pisasale;  and,
    5. He has himself never used prostitution services. 
  3. [17]
    By its original defence the defendant admitted posting an article on its website on or about 30 July 2017 but denied the article was untrue and otherwise joined issue with the pleading on the basis the article itself had not been properly identified or incorporated into the statement of claim and that the matters alleged addressed extracts only and was absent the context provided by the whole of the article.  It contended the pleading was defective in that it did not allege that the publication and/or the imputations were defamatory and accordingly failed to disclose a reasonable cause of action. It otherwise denied the allegations because it contended they were not capable of conveying the imputations pleaded and in any event the imputations were not capable of being defamatory of the plaintiff and were in fact not defamatory of the plaintiff.
  4. [18]
    By offer dated 9 July 2019, the first offer,  which was replicated in the second offer dated 21 Oct 19 the defendant offered to settle the proceeding on the basis:
    1. The defendant amend the Article by the removal of the words “to meet developer Johnson Lin”;
    2. The proceedings to be discontinued with no order as to costs;
    3. Each party to pay his and its own costs of the proceedings and
    4. The parties enter a deed of release, including standard releases and indemnities in relation to the publication of the Article, a bar to further proceedings , and confidentiality as to the terms of settlement.

Was any or either offer a reasonable offer at the time it was made?

  1. [19]
    At that time the ASoC still included the allegation that the plaintiff is and had been at all material times “engaged in good works within his local community, in the course of which he interacts with many members of his local community”  (those words were subsequently deleted following orders by Judge Farr).  It also continued to allege the words spoken and complained of in paragraphs 4(a) to (d) inclusive by their natural meaning were understood to have a defamatory meaning.
  2. [20]
    It was submitted that Mr Lin with the assistance of his legal representatives had ample time to consider his position and the weaknesses in his then case. Accordingly he was in a position to adequately assess the reasonableness of Fairfax’s first offer. 
  3. [21]
    For Mr Lin it was submitted that importantly the first offer (nor offers 2 to 5)  did not include any offer of monetary compensation or any apology or publication of a statement acknowledging the proposed amendment.  In fact it was submitted the proposed amendment failed to address all the defamatory imputations he alleged in paragraph 4(a) to 4(e) of the ASOC by offering to remove only one of the many references to Mr Lin.  It was submitted this was a significant matter because of the time that had passed since the publication of the article and made even more so because of the limited audience.[4]  Additionally it was submitted there is a significant difference between offering to amend a newspaper article years after it was published and offering to publish a statement correcting the article acknowledging that it was inaccurate.  Finally, it was contended that the offer included a term that the parties “…enter a deed of release, including standard releases and indemnities in relation to the publication of the Article, a bar to further proceedings, and confidentiality as to the terms of settlement”.  It was submitted that the offer was not a particularly attractive offer to a plaintiff where he reasonably held a view that their reputation had been seriously harmed by a defamatory publication. 
  4. [22]
    For the plaintiff it was submitted that Mr Lin’s case was not so devoid of merit as to be unarguable as was evidenced by the later successful resistance to the application for summary dismissal for want of prosecution and the application to strike out the defamatory imputations alleged at paragraph 4(a) and (b) of the statement of claim.

It was further contended that another difficulty with the article was that it was unclear from it as to how many times Mr Lin allegedly had contact with Mr Pisasale in or around a brothel.  When later considering these allegations His Honour rejected Fairfax’s submission that the alleged imputations in paragraphs 4(a) and 4(b) required a strained, forced or utterly unreasonable interpretation of the matters complained of although His Honour did strike out paragraphs 4(c), (d) and (e) on the basis of a technical deficiency but granted to leave to replead.  Accordingly, it was further submitted that notwithstanding the pleading required some remediation following the hearing before Judge Farr the underlying inference is that the statement of claim did disclose a reasonable cause of action.  It was submitted upon that basis that the offers were not reasonable offers within the meaning of section 40(3) of the Act. 

  1. [23]
    For the defendant it was submitted  the offer was a reasonable offer because at the time the first offer was made the proceedings had been on foot for over a year and in the meantime the defendant’s solicitor’ had written expressing scepticism about the validity of the plaintiff’s claim. In particular it was contended that problems concerning the ASoC had also been the subject of correspondence addressing those difficulties.
  2. [24]
    It was submitted the plaintiff had ample time to consider both his position and the offer. The offer itself was open for 14 days which it was submitted is generally accepted as a reasonable time for consideration of such an offer . Finally the defendant contended the plaintiff neither responded to the offer nor sought any extension of time to consider it.
  3. [25]
    Although the plaintiff had been guilty of significant delay in the conduct of the litigation to the point to the first offer, the issue concerning the plaintiff’s dilatory conduct should not be conflated with the merits of its case for the purpose of assessing the question of whether the offer was reasonable at the time it was proffered. An appropriate remedy was open to the defendant all times, namely to request specific costs orders related to the dilatory behaviour. It has not been submitted any such applications were made that the time.
  1. [26]
    It follows on a bare assessment of the pleadings a proper cause of action was alleged. The defendant joined issue on that cause of action. Ultimately the question of whether or not the statement complained of conveyed to the ordinary and reasonable reader the meanings alleged was a jury issue. While the defendant succeeded in persuading a jury they were not that verdict does not answer the question as to whether or not the offer was reasonable. In the circumstances I consider the failure to offer a sum of money, even a modest sum, at that time rendered the first offer unreasonable at the time it was made. The first offer did not satisfy the requirements of s. 40 Defamation Act.
  1. [27]
    The only material differences between the first and second offers was the passing of approximately 10 months. Nothing of substance appears to have advanced the proceeding over that period such that the second offer became a reasonable offer in the circumstances. Additionally the second offer was only open for 10 days. As with the first offer the plaintiff neither responded to the offer nor sought any extension of time to consider it. Notwithstanding those matters the second offer did not satisfy the requirements of s. 40 Defamation Act.

Third and Fourth Offers

  1. [28]
    Following the first and second offers on 13 November 2019 an order was made transferring the proceeding to the District Court from the Supreme Court where it had been originally filed.  On 14 July 2020 a FASoC was delivered addressing further complaints raised by the defendant. An amended Defence was filed on 7 Mar 22. It was after that the Third and fourth offers were made. The terms of the offers were expressed in identical terms to the first and second offers; the only relevant distinguishing feature of each later offer being the change of jurisdiction and further lapse of time between the those offers of approximately 10 months between the second and third offer and a further 10 months to the fourth offer. Proceeding wise nothing appears to have transpired over that period.

Was each or either offer a reasonable offer at the time it was made?

  1. [29]
    Each of the third and fourth offers were made in precisely the same terms as the second offer. They were each open for acceptance within 14 days. The FASoC did not materially impact the allegations made in the ASoC. Accordingly except for the change of jurisdiction and elapsing of more time there had been no material change in the position of either party on the issue of liability. As noted earlier I do not think delay constitutes a weighty factor in the consideration of this issue for reasons stated earlier. In the circumstances I consider the continued failure to offer a sum of money, even a modest sum, at that time rendered the third offer unreasonable at the time it was made. The third offer did not satisfy the requirements of s. 40 Defamation Act.
  2. [30]
    The only difference between the third  and fourth offers was the passing of further time. Nothing of substance appears to have advanced the proceeding such that the fourth offer became a reasonable offer in the circumstances. The fourth offer did not satisfy the requirements of s. 40 Defamation Act.

Fifth offer

  1. [31]
    Following the fourth offer the defendant applied on 31 May 2021 for dismissal of the proceedings for want of prosecution or alternatively the striking out of various paragraphs of the further FASoC.  Ultimately, the plaintiff did not argue against the striking out of paragraph 1(b) of the FASoC but was granted leave to replead 1(a).  Additionally, and more significantly, it was granted leave to replead the imputations at paragraphs 4(c), (d) and (e).  The principal basis for permitting that course was because the basis for the order to strike out those imputations was technical in nature and turned upon the definition of the word “plied”.
  2. [32]
    Following orders made by the Court on 12 August 2021 a SFASoC was then filed on 26 August 2021 before a further application was made for leave to further amend the SFASoC which was subsequently ordered on 16 November 2021 with the TFASoC of claim being filed on 31 March 2022.  An Further Amended defence was filed on 11 April 2022.
  3. [33]
    By this point the shape of the action against the defendant was largely settled.

Was the fifth offer a reasonable offer at the time it was made?

  1. [34]
    The only difference between the fourth  and fifth offers was the passing of further time and the plaintiff’s successful defence to an application to strike the proceeding out for want of prosecution. Other orders were made that served to focus the proceeding. Nonetheless a real risk existed for the defendant at this point. In my view the fifth offer which also failed to make any monetary offer remained an unreasonable offer in the circumstances. The fifth offer did not satisfy the requirements of s. 40 Defamation Act.

Sixth offer

  1. [35]
    A sixth and last offer was made on 20 Feb 24. Its terms were identical to the earlier offer except for an additional term that stated, “our client to pay your client the sum of $5000 in lieu of damages”. The only procedural step to follow the sixth offer was the delivery of the  reply on 28 October 2022.  A request for trial date was filed on 31 July 2024 with the trial receiving a trial listing in late November 2024.  As is evident from the history of the matter the matter has progressed in a fairly leisurely manner most particularly on the part of the plaintiff. None of those matters had any material bearing on the reasonableness of the offer then submitted. The defendant also complains about delay. Both parties had a duty in accordance with the UCPR to expeditiously proceed with the proceeding and had available to it the UCPR to achieve that outcome. Neither chose to do so until the unsuccessful application to strike out the proceeding for want of prosecution. However this occurred late in the proceeding.

Was the sixth offer a reasonable offer at the time it was made?

  1. [36]
    As detailed above the cause of action at its essence largely remained the same through out from the outset. The defences had devolved  which enlivened a greater prospect of the plaintiff’s case failing but none the less the later questions left to the jury matters which required proof before some of the defences could be made out. The paltry sum offered did nothing in my view to move the needle on the reasonableness of the offer. In my view the offer remained unreasonable notwithstanding the ultimate outcome proved its rejection to be injudicious.
  2. [37]
    To establish its entitlement to s. 40 costs, the defendant must establish as a threshold matter that at least one of its offers was a reasonable offer at the time it was made. In my view none of the six offers was reasonable the time it was made. Accordingly it fails at the threshold in a claim for indemnity costs of the action pursuant to the Defamation Act, s. 40.

Calderbank offers

  1. [38]
    Each of offers 1 to 6 was also submitted on the basis that if any offer did not satisfy the test for an award pursuant to Defamation Act s. 40 then it would be open to the court to make an order for costs in accordance with the principles in Calderbank v Calderbank.
  2. [39]
    From the history related above it is clear that each offer bettered the plaintiff’s outcome at trial. Accordingly the issue for determination is whether the rejection of any or each of those offers by the plaintiff was unreasonable. In determining an entitlement to costs on these principles the test remains the same as that which is provided for by s. 40 Defamation Act, namely, did the plaintiff unreasonably fail to accept any offer.
  3. [40]
    In S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ptd (No 2) [2020] QSC 323 at [8]–[14] which decision was approved in McGee v Independent Assessor and Anor [No 2} [2014] QCA 7 Bond J ( a His Honour then was) stated the principles as follows:
  1. “[8]
    The relevant considerations were identified in J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23 at [5] to [6] per Holmes JA and Applegarth and Boddice JJ, and in Hadgelias Holdings and Waight v Seirlis [2014] QCA 325 at [11] to [12] per Holmes JA with whom Gotterson and Morrison JJA agreed. In each case, the Queensland Court of Appeal followed the approach taken by the Victorian Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.
  1. [9]
    The following propositions may be distilled from those appellate decisions.
  1. [10]
    First, the usual rule is that where the Court orders the costs of one party to litigation to be paid by another party, the order is for assessment of those costs on the standard basis.
  1. [11]
    Second, the Court will depart from the usual rule where the circumstances of the case warrant that course.
  1. [12]
    Third, one feature which may justify a departure from the usual rule is the rejection of a Calderbank offer to compromise. However, it is wrong to think that an offeree’s rejection of a Calderbank offer gives rise to a presumption that the offeree should pay the offeror’s costs on an indemnity basis if the offeree obtains a less favourable result than contained in the offer. Rather, the correct approach is to consider whether the rejection of the Calderbank offer, in all the circumstances, justifies a departure from the usual rule.
  1. [13]
    Fourth, the balance between the competing policy considerations of, on the one hand, appropriately encouraging settlement and, on the other, not discouraging potential litigants from bringing their disputes to the courts, is found by applying a test of “reasonableness”. The policy rationale for requiring the offeree to indemnify the offeror for costs incurred after the offeree’s unreasonable rejection of an offer is that, from the time of the unreasonable rejection, notionally the real cause and occasion of the litigation is the unreasonable attitude adopted by the offeree.
  1. [14]
    Fifth, deciding the critical question of whether the offeree’s rejection of the offer is unreasonable in all the circumstances will always involve matters of judgment and impression. However, the discretion as to costs must be exercised judicially and is subject to review in accordance with the principles set out in House v The King (1936) 55 CLR 499 at 505. Without being exhaustive concerning the considerations which should be taken into account, a court should ordinarily have regard to at least the following matters:
  1. The stage of the proceeding at which the offer was received;
  1. The time allowed to the offeree to consider the offer;
  1. The extent of the compromise offered;
  1. The offeree’s prospects of success, assessed as at the date of the offer;
  1. The clarity with which the terms of the offer were expressed; and
  1. Whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.” [footnotes omitted]
  1. [41]
    Considering each of those matters:
    1. The first offer was received approximately two years after the complained statement was made. Although at that stage of the proceedings the plaintiff’s rejection now appears imprudent the issues had not so crystalised that the plaintiff’s rejection of any offer was unreasonable. In my view that situation ensured until the delivery of the TFASoC. By that time the proceedings had been on foot for approximately 4 years and most interlocutory steps had been finalised.  In particular by then the defendant’s strike out application had been dismissed and it had filed further pleadings addressing claimed deficiencies. The cause of action had been crystalized and confined. By the time of delivery of the TFASoC the essential defence alleging the words did not give rise to a defamatory imputation was patent as well as defences available if a jury accepted the imputations were defamatory. The defendant had written expressing its scepticism concerning the claim. Upon that basis by the time of the fifth offer  the defendant submitted the plaintiff was in a position to fully appreciate the risks of the proceeding.
    2. The time allowed to consider the offer was 14 days. In my view this was a reasonable time. It accords with the time permitted for a Rules based offer.
    3. The offer was premised upon the defendant’s view that the plaintiff’s claim had no prospects. While that may have proven correct that outcome does not inform the consideration of that matter. Here the plaintiff accepted the background facts. The defendant offered to remove from the article with words “to meet developer Johnson Lin” to eliminate any ambiguity concerning the prospect of the plaintiff meeting with Pisasale at a brothel. No request had been made by the plaintiff to address any other aspect of the article. The plaintiff in its costs submission now suggests that measures such as offering to amend the article and offering to publish a statement correcting the article acknowledging its inaccuracy ought to have been offered. Respectfully I reject that submission. Had that been suggested to the defendant and the defendant rejected such proposals, then the plaintiff’s rejection of the fifth offer would have been on firmer ground in submitting his refusal of the offer was unreasonable. In my view to fail to engage on the offer itself, if those were genuinely live issues demonstrates unreasonableness on the plaintiff’s part. Given the plaintiff’s general dilatory conduct of the proceeding this submission on  measures reflects afterthought. Given the extensive history of offers it could reasonably expected that had the plaintiff wanted or expected more it would have communicated that matter to the defendant. With that one correction the facts of the article were otherwise correct and admitted to being so on the pleadings. Otherwise the complaint was nuanced and had to be viewed from the perspective of what an ordinary reasonable reader would make of it . In the charge to the jury I stated:

“The law requires you (the jury) to think about what the hypothetical ordinary reasonable person would think the words of the article meant. To do this, you must consider how a fair-minded reader would have read the article.  An ordinary reasonable reader is a fair-minded person.  He or she does not look for the worst in everything which he or she reads.  He or she is not suspicious merely for the sake of being suspicious.  He or she is not looking for scandal. He or she does not adopt strained or unlikely or unreasonable interpretations of what was written.  The ordinary reasonable reader is not a person who is prejudiced by their own views and their own particular good or bad experience.  He or she is someone who views the material fairly and rationally.

In determining whether the ordinary reasonable reader would have understood the article as conveying any of the meanings put forward by Mr Lin, it is important for you to keep in mind how this ordinary reasonable reader would have read the article back in July 2017.  For example, the ordinary reasonable reader may have read the article in the evening after work or after their daily commitments or domestic duties. They may have read it at work or on the way to work, or the way home, or they may have read it in their down time. They may have read it on a laptop or phone or a tablet. The ordinary reasonable reader is likely to have only read the article once, and not with analytical care. The ordinary reasonable reader considers the publication as a whole and will attempt to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning.

That ordinary reasonable reader would not have two barristers and a judge telling him or her how to go about interpreting it. So you can see that you will have some difficulties in putting yourself in the position of this ordinary reasonable reader.  But you must nevertheless attempt to do so.  The ordinary reasonable reader did not have lawyers arguing one way or the other for different parties, nor have a judge telling them what principles of law to apply.  So you are not yourselves the ordinary reasonable reader.  It is very important that I emphasise that.

The ordinary reasonable reader would not have interpreted the relevant matter as a lawyer would interpret a legal document.  He or she may draw implications or, as we sometimes say, read between the lines.  They would not be analysing it like an English student interpreting a poem or an article.  Ordinary reasonable readers are unlikely to apply strict laws of logic.  They may more readily jump to conclusions than a professor of logic at a university.

You may assume that the ordinary reasonable reader sometimes engages in a little loose thinking.  He or she does not sit down to work out what the meaning of the article is or how it may have been understood by somebody who did study it.  When someone reads an article online, they do not have to formulate reasons as to what they have read, and do not have to answer questions.  The reader obtains an overall impression of what the item is saying.  It is the general impression which is conveyed which is important to that ordinary reasonable reader.    What you must ask is if the impression they gained would be what is set out in the meanings in question 1.

You will now likely have read the article several times.  The article will be with you in the jury room when you retire to consider the matter and you may read it and re-read as you consider appropriate. You have had counsel analyse parts of it.  But you must bear in mind, that the ordinary reasonable reader of the article in July 2017 would not have done any of those things. They would be unlikely to have read the article more than once. They won't have spent much time analysing it.  You have, but when you come to answer these questions, it is the standard of the ordinary reasonable reader that you use.

When considering those matters I’m of the view that in considering these allegations and being informed of the test to be applied in determining whether the alleged imputations arose the plaintiff ought reasonably have recognised his prospects were not strong. When measured against the extent of the alleged defamation, the reach of the words, the passing of time and  the remediation offered this factor particularly and tellingly speaks of the unreasonableness of the refusal of the defendant’s offer.

  1. The terms of the offer were clear on its face. The plaintiff claims the words of the offer were not clear including terms such as “standard release and indemnities in relation to publication of the Article, a bar to further proceedings, and confidentiality a to the terms of settlement”. The offer was for these matters in principle. As is customarily the case, the terms of a formal Deed of Settlement are subject to further negation. This is not a case where  the offer fell over because of a clause in a Deed of Settlement. The plaintiff here offered to settle in principle and the plaintiff simply did not engage. Respectfully the submissions here reflect lawyer’s sophistry made with the benefit of hindsight rather than genuine concerns informing the  plaintiff’s attitude at the time to the offer. His attitude was simply to dismiss the offer.
  1. [42]
    Ultimately I’m of the view that the plaintiff’s failure to accept the defendant’s fifth offer of 6 October 22 was unreasonable in all of the circumstances. The offer bettered the outcome following trail. The plaintiff should pay the defendant costs of the proceeding on the standard basis to 18 October 2022 and on and from that date on the indemnity basis.

Order

  1. [43]
    The plaintiff pay the Defendant’s costs of and incidental to the proceeding on the standard basis until 18 October 2022 and on and from that date on the indemnity basis.

Footnotes

[1]  [2000] NSWCA 323 at [37].

[2]  [2004] VSC 351 per Redlich J.

[3]  [2005] VSCA 298 at 23.

[4]  Mr Solomons the journalist swore that the Article received approx. 300 clicks, meaning approx. 300 people opened the article from which it might be inferred they had the article in its entirety.

Close

Editorial Notes

  • Published Case Name:

    Lin v Fairfax Digital Australia & New Zealand Pty Ltd

  • Shortened Case Name:

    Lin v Fairfax Digital Australia & New Zealand Pty Ltd

  • MNC:

    [2025] QDC 51

  • Court:

    QDC

  • Judge(s):

    Burnett AM, DCJ

  • Date:

    10 Feb 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Calderbank v Calderbank (1976) Fam 93
2 citations
Jump To
Cite 1 - (1976) Fam 93
Cite 2 - (1976) Fam 93
Hadgelias Holdings Pty Ltd v Seirlis [2014] QCA 325
1 citation
Jump To
Cite 1 - [2014] QCA 325
Hazeldene's Chicken Farm Pty Ltd v Victorian Work Cover Authority (2005) 13 VR 435
1 citation
Jump To
Cite 1 - (2005) 13 VR 435
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298
1 citation
Jump To
Cite 1 - [2005] VSCA 298
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349
1 citation
Jump To
Cite 1 - [2012] NSWCA 349
J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23
1 citation
Jump To
Cite 1 - [2014] QCA 23
Karageozis v Sherman [No 2] [2024] QCA 12
2 citations
Jump To
Cite 1 - [2024] QCA 12
Cite 2 - [2024] QCA 12
McGee v Independent Assessor [No 2] [2024] QCA 7
1 citation
Jump To
Cite 1 - [2024] QCA 7
Mizikovsky v Queensland Television Ltd[2014] 1 Qd R 197; [2013] QCA 68
2 citations
Jump To
Cite 1 - [2014] 1 Qd R 197
Cite 2 - [2014] 1 Qd R 197
R v RAO, BCR & BCS; ex parte Attorney-General [2014] QCA 7
1 citation
Jump To
Cite 1 - [2014] QCA 7
Richfield Investments Pty Ltd v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351
2 citations
Jump To
Cite 1 - [2004] VSC 351
Cite 2 - [2004] VSC 351
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323
1 citation
Jump To
Cite 1 - [2020] QSC 323
Smec Testing Services v Campbell Town City Council [2000] NSWCA 323
2 citations
Jump To
Cite 1 - [2000] NSWCA 323
Cite 2 - [2000] NSWCA 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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