Huynh v Chu

(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 ...; 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) ...

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."

• [5] On 12 July 2023, the plaintiff's solicitor sent a complying concerns notice to the Defendant which identified his complaints sufficiently for the Defendant to realise that she bore liability to him for publishing the defamatory matter about which he had complained.
• [6] In that concerns notice, the Plaintiff identified what it was that he expected from the Defendant by way of an Offer to Make Amends including:

(a) removal of the offending publications and similar publications made by the Defendant which were not the subject of complaint (not known);

(b) agree to refrain from publishing similar defamatory matter in the future;

(c) agree to publish an apology; and

(d) pay the Plaintiff's reasonably incurred expenses including legal expenses.

• [7] Noting that it did not require a payment of damages, the offer was reasonable enough to warrant a response.
• [8] The defendant did not respond to the concerns notice. It was not necessarily unreasonable not to accept the offer - the plaintiff's financial position is not in evidence nor is the amount in costs that might then have been sought - but it was unreasonable not to engage and make a settlement offer.
• [9] As noted in the reasons for judgement, the defendant did not enter a meaningful defence and did not take part in the proceeding, although she did attend on the day it was listed for judgment.
• [10] As the defendant submits, it is necessary to consider whether the interests of justice require otherwise than an award of indemnity costs. The defendant did not initiate interlocutory proceedings or advance mischievous and time-wasting defences. Her lack of engagement allowed the plaintiff an uninterrupted path to a short trial.
• [11] The defendant's submission relies on asserted facts for which there is no evidence For example, that -

(a) to "a layperson of limited means and education, the plaintiff's demands may have appeared inflated and unrealistic."

(b) it is unlikely the defendant had a real appreciation of the procedural and cost-related consequences of not responding to the concerns notice.

• [12] It is difficult, and would be unfair to the plaintiff, to accept such submissions without evidence. In any case, the offer to settle in the concerns notice did not include a demand for an amount of damages. And the defendant did engage a solicitor to prepare and enter the defence although there is no evidence to explain the absence of further participation.
• [13] In the result, I am satisfied the interests of justice do not require a departure from the injunction in subs. 40(2) of the Act. The order will be that the defendant pay the plaintiff's costs to be assessed on the indemnity basis.
• [14] As to the second issue, although the award of damages was less than half the monetary jurisdiction of the Magistrates Court, the relief sought and granted included a mandatory injunction. That relief could not have been given in a Magistrates Court. It was a necessary part of the claim and judgment. Rule 697 of the Uniform Civil Procedure Rules does not apply.
• [15] I will make the award for interest on damages as calculated by the plaintiff's solicitor, which is unchallenged by the defendant.

1. That the amount of interest awarded in Order 1 made on 12 November 2025 be in the sum of $9,793.05.
2. That the defendant pay the plaintiff's costs of the proceeding, including the cost of preparing the affidavit relied upon at trial, but otherwise not including the costs of the application for declarations of deemed admissions, to be assessed on an indemnity basis.