Richards v Hutchinson [No 2][2024] QSC 99

SUPREME COURT OF QUEENSLAND

1. [1]
   On 2 May 2024, the Court made orders and published reasons dealing with two applications.^[1]  The Court dismissed the plaintiff’s application for an extension of a limitation period for a second defamation claim,^[2] and gave summary judgment for all the defendants on the second defamation claim, and for some of the defendants on the plaintiff’s other claims (for damages for the original defamation claim and for civil conspiracy).^[3]  The Court also struck out one paragraph of the plaintiff’s amended statement of claim.^[4]
2. [2]
   At the request of the parties at the delivery of judgment, the Court directed that written submissions be filed about the appropriate order or orders that should be made in respect of costs.  The parties did so on 20 May 2024. 

Plaintiff’s cost submissions

3. [3]
   The plaintiff submitted any costs order should be limited to the costs of the plaintiff’s unsuccessful application for an extension of the limitation period, with those costs not to be assessed until the proceeding ends.  The plaintiff asked the Court to reserve the costs of the defendants’ successful summary judgment application to the trial judge. 
4. [4]
   In the event those submissions did not find favour, the plaintiff made an alternative submission.^[5]  This was that the plaintiff should be ordered to pay the costs of the second, third, fourth, fifth, sixth, seventh, eighth, ninth and eleventh defendants (the 9 defendants) in respect of the parts of the summary judgment application that relate to the two claims for damages for defamation.  The plaintiff may also have accepted, in this alternative scenario, that she should pay the costs of the second, third, fourth, fifth, sixth, eighth, and ninth defendants (the 7 defendants) who obtained summary judgment in respect the civil conspiracy claim.^[6]
5. [5]
   In each of these scenarios, the plaintiff submitted the relevant defendants’ costs should be assessed on the standard basis. 

The defendants’ cost submissions

6. [6]
   The defendants submitted the plaintiff should be ordered to pay the costs of the first, seventh, tenth, eleventh and twelfth defendants of the two applications filed in the proceeding and of the proceeding itself in respect of the paragraphs in which the plaintiff pleaded the claim for which an extension was refused.  These costs were to be assessed on the standard basis. 
7. [7]
   They also submitted the plaintiff should be ordered to pay: the 7 defendants’ costs of the applications; and the costs of the seventh and eleventh defendants in respect of the paragraphs in which the plaintiff pleaded the defamation claim for which an extension was refused.  These costs were to be assessed on the indemnity basis. 

The progress of the proceeding and the offers made by the defendants

8. [8]
   On 8 December 2020, the plaintiff commenced the proceeding, claiming damages for defamation against all the defendants.  She alleged each of the defendants “wrote, authorised and published” a media release on or about 10 December 2019, which was defamatory of her.  This was the original defamation claim. 
9. [9]
   By 19 January 2021, the defendants had retained their present solicitors to act for all of them.  On 2 February 2021, a defence was filed on behalf of all the defendants. 
10. [10]
    On 2 February 2021, each of the defendants made a settlement offer in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 33 (Calderbank).  The offer was for the proceeding to be discontinued by consent and for the plaintiff to pay 70% of the defendant’s costs on the standard basis.  Each defendant put the plaintiff on notice that, if their offer was not accepted and the claim ultimately failed against the defendant, then the defendant would seek an order for indemnity costs in relation to the whole proceeding in reliance on s 40 of the Defamation Act 2005 (Qld).  Each offer was open for acceptance for 14 days. 
11. [11]
    The plaintiff did not accept any of the offers. 
12. [12]
    On 10 June 2022, the plaintiff filed an amended statement of claim.  By it, the plaintiff maintained her original defamation claim and added two new causes of action: a second defamation claim for damages for causing the publication of another document between 10 December 2019 and 1 March 2020; and damages for civil conspiracy.  To advance the newer defamation claim, the plaintiff required an extension of the limitation period. 
13. [13]
    On 29 July 2022, an amended defence was filed on behalf of all the defendants. 
14. [14]
    On 21 July 2023, each of the defendants made a settlement offer in accordance with the principles in Calderbank.  The offer was for the proceeding to be discontinued within seven days of written acceptance of the offer and for the plaintiff to pay 75% of the defendant’s standard costs up to the date of the offer (excluding the subject of two costs orders made in the proceeding on 10 June 2022 and 19 April 2023).  Each defendant put the plaintiff on notice that, if the offer was rejected the defendant would rely on the offer in seeking an order for indemnity costs.  Each offer was open for acceptance for 14 days. 
15. [15]
    The plaintiff did not accept any of the offers. 
16. [16]
    On 21 July 2023 the defendants applied for summary judgment.  All defendants sought judgment on the second defamation claim and various defendants, but not all, sought judgment on the other two causes of action.  On 8 September an amended application was filed. 
17. [17]
    On 28 August 2023 the plaintiff applied for an extension of the limitation period for the second defamation claim.  An amended application was filed on 25 October 2023. 
18. [18]
    On 11 April 2024, the applications were heard. 
19. [19]
    On 2 May 2024, the plaintiff’s application was dismissed, and the defendants obtained the primary relief sought in their application for summary judgment. 
20. [20]
    The proceeding now involves only the plaintiff’s original defamation claim against the first, tenth and twelfth defendants and the civil conspiracy claim against the first, seventh, tenth, eleventh and twelfth defendants. 

21. [21]
    The parties seek or resist orders about the costs of the two applications and of the proceedings. 

The costs of the plaintiff’s application and the defendants’ application

22. [22]
    The plaintiff failed in her application for an extension of the limitation period.  The defendants succeeded in their application for summary judgment.  It is common ground that the plaintiff should be ordered to pay the defendants’ costs of her application.  There is no reason why the plaintiff should not be ordered to pay the defendants’ costs of their application. 
23. [23]
    Within this general approach, there are two issues.  The first is, should it prove necessary to assess those costs, whether the costs should be assessed on the standard basis for all defendants or, as the defendants submit, on the standard basis for five of the defendants and on the indemnity basis for the other seven defendants.  The second is whether the Court should order that those costs not be assessed until the proceeding ends, as the plaintiff submits. 
24. [24]
    As to the first question, the following points appear relevant. 

    1. All defendants have the same legal representation, concurred in the same defence pleadings, made identical offers to settle, advanced a common application for summary judgment, and resisted a common application to extend the limitation period.  There is nothing to indicate that different defendants have incurred separate identifiable costs in the summary judgment application or in resisting the plaintiff’s application. 
    2. It seems inappropriate to order that the costs of some defendants be assessed on the standard and others on the indemnity basis. 
    3. The task of identifying the costs of five defendants against whom the proceeding will continue and those of the other seven defendants would likely involve incurring more than a minimum of expense.  If the usual costs order were to be made, any additional expense would be unnecessary. 
    4. The settlement offers made by the defendants concern the proceeding as a whole and not the applications determined on 2 May 2024. 
25. [25]
    The Court should make the defendants’ costs of the two applications assessable on the standard basis. 
26. [26]
    As to the second question, the following points seem relevant. 

    1. The defendants may be liable to their solicitors for the actual costs incurred in advancing their own application and opposing the plaintiff’s application.  A delay in the recovery of standard costs may leave the defendants “out of pocket” during that period. 
    2. Seven of the defendants who would be entitled to the costs of the applications have no continuing role in the substantive proceeding.  If the parties do not agree on the amount for costs, the costs could be assessed before the applications become a mere memory for those defendants. 
    3. The plaintiff has not identified anything relevant to the costs of her unsuccessful application and the successful summary judgment application that would make it appropriate to order that those costs not be assessed until the proceeding ends. 
27. [27]
    The Court should not make an order pursuant to r 682(2) of the Uniform Civil Procedure Rules 1999 (Qld) delaying the assessment of these costs. 

The costs of the proceeding for the defendants without any continuing role

28. [28]
    In addition to the considerations in paragraphs [24] to [27] above, the following matters seem relevant. 

    1. The cost liabilities of each of the 7 defendants, as distinct from the defendants with a continuing role in the proceeding, is not known.  There is nothing to indicate that particular defendants have incurred separate identifiable costs in the proceeding. 
    2. The first round of settlement offers made on 2 February 2021 related only to the plaintiff’s original defamation claim, which is continuing against three defendants.  The second round of settlement offers made on 21 July 2023 related to all three of the plaintiff’s causes of action.  The second defamation claim continues against three of the defendants and the civil conspiracy claim continues against five of the defendants. 
    3. The liability of the continuing defendants, if any, to the plaintiff in respect of the continuing causes of action will not be known until the proceeding is determined or resolved.  Until then, it will not be known whether all the defendants are in the same position with respect to the settlement offers, the Calderbank principles and s 40 of the Defamation Act 2005 (Qld). 

29. [29]
    The Court should reserve the costs of the proceeding of the 7 defendants, so that appropriate orders may be made when the respective positions and liabilities of all the defendants is known with more certainty. 

The orders to be made

30. [30]
    For the reasons set out above, the Court orders that:

    1. the plaintiff pay the defendants’ costs of:
       3. (i)
          the defendants’ amended application filed 8 September 2023; and
       3. (ii)
          her amended application filed 25 October 2023.
    2. The second, third, fourth, fifth, sixth, eighth, and ninth defendants’ costs of the proceeding are reserved.