McVicker v Nine Digital Pty Ltd [No 2]
[2025] QSC 150
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- McVicker v Nine Digital Pty Ltd [No 2][2025] QSC 150
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McVicker v Nine Digital Pty Ltd [No 2][2025] QSC 150
McVicker v Nine Digital Pty Ltd [No 2][2025] QSC 150
SUPREME COURT OF QUEENSLAND
CITATION: | McVicker v Nine Digital Pty Ltd (No 2) [2025] QSC 150 |
PARTIES: | ROBERT McVICKER (Plaintiff) v NINE DIGITAL PTY LTD ACN 077 753 461 (Defendant) |
FILE NO: | BS 15590 of 2023 |
DIVISION: | Trial Division |
PROCEEDING: | Hearing of separate questions |
DELIVERED ON: | 23 June 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers, on the basis of written submissions |
JUDGE: | Bowskill CJ |
ORDERS: | THE COURT ORDERS THAT:
|
CATCHWORDS: | DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SEPARATE DECISIONS OF QUESTIONS – consideration of appropriate basis of assessment of costs of proceeding ordered to be paid by plaintiff following determination of separate questions under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) which resulted in the proceeding being dismissed Defamation Act 2005 (Qld), s 40 Uniform Civil Procedure Rules 1999 (Qld), r 483 |
COUNSEL: | The plaintiff, on his own behalf P Morreau KC for the defendant |
SOLICITORS: | The plaintiff, on his own behalf Thomson Geer for the defendant |
- [1]On 26 May 2025, the Court published its reasons for the answers given to the separate questions ordered under r 483 of the Uniform Civil Procedure Rules 1999.[1] The parties were given the opportunity to be heard in relation to the appropriate consequential order and as to costs.
- [2]The parties are agreed that, in light of the answers given, it is appropriate to order that the proceeding is dismissed, and that the plaintiff pay the defendant’s costs of the proceeding. However, there is a dispute as to the basis on which the costs ought to be assessed.
- [3]The defendant submits the costs should be assessed on the indemnity basis for the whole of the proceeding or, alternatively, from the date of one or more of the offers to settle made by the defendant after the proceeding was commenced. The plaintiff submits costs should be assessed on the standard basis only.
- [4]The defendant relies upon s 40(2)(b) of the Defamation Act 2005 (Qld), a provision which expands the circumstances in which indemnity costs might otherwise be ordered.[2] That section provides:
“40Costs in defamation proceedings
- In awarding costs in defamation proceedings, the court may have regard to –
- 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
- any other matters that the court considers relevant.
- Without limiting subsection (1), a court must (unless the interests of justice require otherwise) –
- 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
- 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.
- 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.”[3]
- [5]This proceeding was commenced in October 2020, in the District Court. It was later transferred to this Court. Prior to the proceedings being commenced, the defendant made an offer to make amends, within the meaning of s 15 of the Defamation Act, which was accepted by the plaintiff in May 2020. The details of what the defendant did in carrying out the terms of the agreement formed by acceptance of the offer to make amends are set out in the judgment delivered on 26 May 2025.
- [6]After the proceedings had been on foot for some time, on 1 December 2023, the defendant made an offer to settle the proceeding, on the basis that:
- the proceeding be dismissed;
- the parties bear their own costs of the proceeding;
- the defendant remove from its website the matters complained of in the concerns notice dated 18 November 2019 – noting that this had occurred “a long time ago”;
- the online correction previously agreed to would remain available on the A Current Affair website (a link was provided in the offer);
- the defendant would re-publish a link to the correction on the A Current Affair homepage – with an expanded description; and
- the parties enter into a settlement agreement.
- [7]The letter of offer expressly stated that, if the offer was not accepted, the defendant would rely on the letter for the purposes of s 40(2)(b) of the Defamation Act and, otherwise, in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333.
- [8]That offer was not accepted by the plaintiff.
- [9]The defendant repeated that offer, in substantially similar terms, on 16 February 2024. Then, on 28 February 2024, the defendant varied its offer, so that on this occasion what was offered was to publish a document titled “apology” (as opposed to the originally agreed “correction”). I infer that arose out of the mediation that took place on 28 February 2024. That offer was made again on 4 March 2024. None of the offers were accepted by the plaintiff.
- [10]The plaintiff, representing himself since the judgment was delivered, has filed an affidavit in which he explains why he did not accept any of the offers the defendant made. The reasons essentially reflect the plaintiff’s position in relation to the separate questions. In his written submissions at [12], the plaintiff says the offers:
“…were made well after the proceedings had commenced, made no provision for costs nor offered any damages. The plaintiff’s reputation was not vindicated by the offers as the offers failed to restore the publication [in] terms of the correction agreement (being on the website for no less than 60 days). In those circumstances the offer or offers were not reasonable at the time they were made or it was not unreasonable of the plaintiff to not have accepted such offers.”
- [11]The difficulty with this submission is that it does not engage with the answers to the separate questions; it contests the reasonableness of the defendant’s offer by reference to the plaintiff’s arguments in relation to performance of the agreement formed by acceptance of the offer to make amends, which were rejected by the Court in answering the separate questions.
- [12]The defendant’s offer of 1 December 2023 was objectively reasonable at the time it was made. It involved real compromise, given there was already an agreement between the parties formed by the plaintiff’s acceptance of the offer to make amends, which (as has been found) had been carried out by the defendant, and, importantly, having regard to the effect of s 17 of the Defamation Act. The compromise is reflected in the offer by the defendant to bear its own costs to that point, and to republish (more than three years after the agreement had been made, in May 2020) a link to the correction on the A Current Affair homepage.
- [13]I am satisfied the plaintiff unreasonably failed to accept the settlement offer made by the defendant on 1 December 2023. The failure to accept the later settlement offers was also unreasonable, but for present purposes it is the unreasonable failure to accept the first offer that is determinative.
- [14]In those circumstances, s 40(2)(b) requires the Court to order costs of “the proceeding” to be assessed on an indemnity basis, unless the interests of justice require otherwise. As to this, the first point made by the plaintiff – as to the time at which the offer was made – is relevant. That first offer was made almost three years after the proceeding was originally commenced. Having regard to that length of time, and in the absence of any explanation in the affidavit material or submissions of the defendant, as to why no steps were taken prior to that time to resolve the proceeding, I consider that it is in the interests of justice to limit the order for assessment of costs on the indemnity basis to the period after the unreasonable refusal of the first reasonable offer. Since the offer was open for acceptance for 14 days, the relevant date is 15 December 2023.
- [15]I therefore propose to order that the plaintiff pay the defendant’s costs of the proceeding, on the standard basis up to and including 15 December 2023 and on the indemnity basis after 15 December 2023.