Asbog Veterinary Services Pty Ltd & Anor v Barlow (No 2) [2020] QDC 204

DISTRICT COURT OF QUEENSLAND CITATION: Asbog Veterinary Services Pty Ltd & Anor v Barlow (No 2) [2020] QDC 204 PARTIES: ASBOG VETERINARY SERVICES PTY LTD ACN 010 316 248 TRADING AS ALBION VETERINARY SURGERY AND EATON HILLS VETERINARY SURGERY (first plaintiff) AND ALAN STANISLAUS BRIAN O’GRADY (second plaintiff) v CARRIE BARLOW (defendant) FILE NO/S: 4809 of 2014 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Queensland DELIVERED ON: 26 August 2020 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Sheridan DCJ ORDER: The defendant pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on an indemnity basis. CATCHWORDS: DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – where plaintiffs brought an action for defamation against the defendant – where judgment entered in favour of plaintiffs – where plaintiffs issued formal offer pursuant to Chapter 9, Part 5 Uniform Civil Procedure Rules 1999 (Qld) prior to trial – where formal offer rejected by defendant – whether plaintiffs are entitled to costs on the indemnity basis – whether costs should be assessed according to Magistrates or District Court scale Defamation Act 2005 (Qld), s 40 Uniform Civil Procedure Rules 1999 (Qld), r 360, r 703 AL Powell Holdings Pty Ltd v Dick [2012] QCA 254, cited -- 1 of 6 -- 2 Balnaves v Smith & Anor [2012] QSC 408, cited Davis v Nationwide News Pty Ltd [2008] NSWSC 946, cited Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19, cited Timms v Clift [1998] 2 Qd R 100, cited Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 267, cited COUNSEL: D V Ferraro for the plaintiffs Self-representation by the defendant SOLICITORS: Ferguson Cannon Lawyers for the plaintiffs [1] The substantive judgment and reasons were delivered on 11 June 2020. [2] At that time, orders were made for the filing of a consent order by 25 June 2020 if the parties could reach agreement, and in the absence of agreement, for the filing of submissions at to costs. The orders provided for the plaintiff to file submissions by 2 July 2020, the defendant to file submissions by 9 July 2020 and the plaintiffs to file any submissions in reply by 16 July 2020. [3] Subsequently, by email to my associate (copied to the plaintiffs’ solicitors) the defendant requested to be permitted to file submissions in response to the plaintiffs’ submissions. The defendant explained that she was now representing herself. Leave was granted and an order was made permitting the defendant to file further submissions in reply to the plaintiff’s final submissions. The defendant’s further submissions were received on 24 July 2020. [4] The plaintiffs seek an order for costs on an indemnity basis pursuant to s 40 of the Defamation Act 2005 (Qld) (the Act) and/or pursuant to r 703 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and/or pursuant to r 360 of the UCPR. [5] The defendant seeks an order for each party to pay their own costs or an order that the defendant pay the plaintiffs’ costs assessed on a standard basis and according to the Magistrates Court scale. Defamation Act [6] Section 40 of the Act provides: “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 proceeding conduct 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 -- 2 of 6 -- 2 unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; (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 an 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.” [7] If s 40(2)(a) or (b) is engaged, then unless the interests of justice require otherwise, a Court must order costs of and incidental to a proceeding be assessed on an indemnity basis. [8] The purpose of a provision such as s 40(2)(a) was explained by McClellan CJ in Davis v Nationwide News Pty Ltd1 as follows: “The special costs provisions [in the Defamation Act] were introduced following a concern that the costs of defamation proceedings may prohibit persons who have a legitimate claim from pursuing relief. Unless in appropriate cases costs were awarded on an indemnity basis a plaintiff may be out of pocket to such an extent that the risks in bringing proceedings were unacceptable.” 2 [9] McClellan CJ said that s 40(2): “obliges parties to defamation proceedings to take a reasonable approach to negotiations for the settlement of those proceedings. A party who unreasonably fails to make or accept a settlement offer may be ordered to pay costs on an indemnity basis.”3 [10] The provisions of s 40 co-exist with the other provisions of the UCPR governing costs and do not displace the court’s power to order indemnity costs in appropriate circumstances and the rules of Court by which parties can obtain some protection in respect of costs by making formal offers to settle.4 If s 40(2)(a) is engaged, then unless the interests of justice require otherwise, a court “must” order costs of and incidental to a proceeding be assessed on an indemnity basis. [11] In contending that the costs ought to be ordered on an indemnity basis, on behalf of the plaintiffs reference was made to the following communications: (a) On 17 October 2014, the plaintiffs issued through their lawyers “a concerns notice” in which a request was made for a written apology, a retraction and an undertaking not to publish further defamatory material, with no request for damages or costs at that stage; 1 [2008] NSWSC 946 (Davis). 2 Davis at [26]. 3 Davis at [27]. 4 Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19 at [73] per Applegarth J; Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 267 at [6] per Flanagan J. -- 3 of 6 -- 3 (b) By letter dated 24 October 2014, the defendant failed to make an offer to make amends, indicated that she did not have the means to fund legal representation and noted that she had taken steps to ensure that the postings were a “precise representation of my experience at Albion Vet Surgery”; (c) By letter dated 3 November 2014, the plaintiffs again invited the defendant to make an offer to make amends, together with an undertaking not to publish further defamatory material and payment of the sum of $6,300 ( $2,200 for legal costs and $4,100 for loss of income) within three days of receipt of the correspondence; (d) By letter dated 10 November 2014, the defendant said she could not make the apology requested as she still carried her own views and opinions of the surgery to the contrary and referred to the fact that her statements were published with the defences of justification, truth and honest opinion but that she had deleted the Facebook and Twitter posts and requested True Local to remove her review; (e) By letter dated 22 December 2014, in response to the filing of the claim by the plaintiffs on 8 December 2014, the defendant offered to resolve the proceeding by offering to delete the remaining posts on Twitter and True Local, refrain from any further public critique of the plaintiffs, provide an apology (as attached to the letter and as drafted by the defendant) which the plaintiffs could publish but declining to publish any apology herself and making a payment of $500 as a “gesture of good faith”; (f) By email dated 24 December 2014, the plaintiffs made a formal offer to the defendant pursuant to Chapter 9, Part 5 of the UCPR on the basis that the defendant pay the sum of $17,500 to the plaintiffs, the defendant provide a retraction and an apology with the settlement sum to be paid within 14 days of acceptance of the offer and a notice of discontinuance to be filed within seven days of receipt of the settlement sum; (g) By email dated 24 December 2014, the defendant rejected the plaintiffs’ formal offer on the basis that the financial component of the request was unreasonable. [12] The offers made by the plaintiffs, prior to the commencement of proceedings, were all rejected by the defendant. Whilst the defendant did respond to the offers, her initial response after the concerns letter was to further add to her posts, including by referring to the concerns letter. As was stated in the reasons for decision, her responses confirmed her belief in the statements made and maintained that the publications were true. [13] After the proceedings had issued, the defendant made an offer which was said to contain an apology but, as observed in the reasons for decisions, the apology was, at best, an apology for harm caused, not for the making of the statements and there was no acceptance that the statements were unjustified. [14] By her letters, the defendant was certainly not making any concessions, even in the face of proceedings having been filed. In fact, in her offer of 22 December 2014, she said she was prepared to proceed to trial, stating that “several reputable law firms have already expressed an interest in providing legal counsel.” She then added, “I am prepared to pay for the best legal representation in Australia to defend my statements.” -- 4 of 6 -- 4 [15] In her submissions, in referring to the plaintiffs’ offers made early in the proceedings, the defendant says that she was “[i]ntimidated by the Plaintiffs’ early conduct via their lawyers” and “by the Plaintiffs’ superior financial position, which led to her making some regrettable but transparent assertions in her early communications with the Plaintiffs while self-represented.” [16] The difficulty in accepting that submission is that the defendant became represented by lawyers in March 2015 and, at no time after their appointment, was any subsequent offer made by the defendant to the plaintiffs. As stated in the reasons for decision, “In the circumstances here, there has not been an apology, there was a persistence in alleging the truth of the statements and Ms Curtis subsequently participated in a Courier Mail interview and A Current Affairs programme.” Links to both the Courier Mail article and the Current Affair programme are contained on the Facebook site, Freedom for Fair On-line Review – Australia, opened in her name. [17] The defendant’s refusal of the formal offer to settle under the UCPR made by the plaintiffs very early in the proceedings is consistent with her approach throughout. As noted in the plaintiffs’ submissions, that offer “was rejected by the defendant within eight minutes of receipt.” [18] In assessing that offer for the purposes of Chapter 9 Part 5 of the UCPR, pursuant to r 360 the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances, if: “(a) the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and (a) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer.” [19] The terms of the formal offer required a payment of $17,500 (Settlement Sum) by the defendant to the plaintiffs. The offer did not seek any additional payment for interest or costs. The offer required the defendant to provide an apology for making such statements that could be made available to the public and an undertaking not to make such statements into the future. The offer provided that the parties will file a Notice of Discontinuance within seven days of receipt of the Settlement Sum. The offer was open for 14 days and was capable of acceptance by notifying the plaintiffs’ solicitors. [20] The order made by the court awarded to the plaintiffs an amount of $25,000 together with an amount of $4,244.29 for interest and injunctive relief restraining the defendant from publishing or causing to be published the words set out in the First to Seventh Publications in the future. [21] The inclusion in the offer of a requirement for an apology, a term that would not be a part of any judgment, does not mean that the offer cannot be more favourable than the judgment.5 It is a matter for the court’s judgment as to whether, an offer to settle having been made, the effect of the judgment overall was “no less favourable” to the plaintiffs than the offer. 5 Timms v Clift [1998] 2 Qd R 100 at 107-108, applied in AL Powell Holdings Pty Ltd v Dick [2012] QCA 254, [70]-[71] and Balnaves v Smith & Anor [2012] QSC 408, [30]-[36]. -- 5 of 6 -- 5 [22] The award of damages obtained by the plaintiffs was higher than the sum sought in the offer to settle particularly when provision is made for any award of costs and, despite the presence of the request for an apology, the result of the judgment included ample vindication of the plaintiffs’ position, the judgment was more favourable than the offer. [23] I am not satisfied that there was any conduct by the plaintiffs that should otherwise disentitle them to the benefit of that offer. Whilst there was undoubtedly delay in the pursuit of these proceedings, I am not satisfied, as the defendant has submitted, that the delay caused undue expense which impacted on the defendant’s legal position and her financial ability to settle the matter prior to trial. There was nothing in the conduct of the defendant in these proceedings which was indicative of any real intention by her to settle. [24] The Magistrates Court does not have jurisdiction to grant injunctive relief. There is no reason why an order for costs should not be made on the District Court scale. [25] In the circumstances, having a regard to the terms of s 40 of the Act and r 360 of the UCPR, it is appropriate to make an order for the defendant to pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on an indemnity basis. -- 6 of 6 --