These are the reasons for the orders made in respect of the costs of this action.
Directions in relation to costs were made on 15 January 2025 at the time of judgment delivery. For reasons it is unnecessary to go into, the plaintiff was unable to comply with those directions.
On 1 April 2025 I vacated the directions made on 15 January 2025 and made directions requiring the plaintiff to file and serve a minute of the costs orders sought by her together with submissions (limited to six pages) and any affidavit evidence on which she wished to rely by 4 April 2025. The defendants were required to file and serve any responsive submissions (also limited to six pages) together with any affidavit evidence on which they wished to rely by 25 April 2025. The defendants did not file any submissions in compliance with these directions.
The plaintiff filed and served a minute of orders, submissions and an affidavit in support on 4 April 2025. The plaintiff sought an order that the defendants pay the plaintiff's costs (including reserved costs) of the action on an indemnity basis save to the extent to which such costs were unreasonably incurred or of an unreasonable amount to be assessed if not agreed.
For the purposes of establishing that the defendants failed to make a settlement offer or agree to a settlement offer proposed by her she annexed to her affidavit correspondence exchanged with the second defendants and solicitors instructed by them. In her submissions the plaintiff provided the following summary of the correspondence:
On 16 August 2023, the Plaintiff issued the Concerns Notice to the Second Defendants relating to the 31 July Publication. She asked that the Second Defendants provide her with an undertaking they would not further publish the allegations, a written apology and retraction. If the Second Defendants agreed to do so by 24 August 2023, she would not take any further action. She made no demand for compensation nor any demand for costs.
On 29 August 2023, solicitors for the Second Defendants wrote to the Plaintiff stating they apologised, withdrew the allegations and gave an undertaking not to repeat, publish or republish them. To the extent this letter purported to apologise for and withdraw the allegations, it was qualified by the earlier paragraphs intimating the Second Defendants were only sorry they used the wrong channels to convey the imputations. There was no offer of any monetary component.
On 5 September 2023, the Plaintiff responded to the solicitors for the Second Defendants. She stated that if it was intended to be an offer to make amends, it was 'not accepted'. She stated, for the first time, that the opportunity to negotiate a resolution of the matter without a monetary component was withdrawn.
On 13 September 2023, a new firm of solicitors acting for the Second Defendants wrote to the Plaintiff with an offer to make amends. The offer proposed a written undertaking not to repeat the defamatory imputations, an apology and retraction (in a form there annexed) issued to addressees, as well as payment of the Plaintiff's reasonable legal costs. By this letter, the Second Defendants claimed they were making no offer to pay any damage due to their financial position.
On 27 September 2023, the Plaintiff responded confirming she did not accept the offer to make amends. She made a counteroffer seeking a written undertaking not to repeat the defamatory imputations, an apology and retraction issued to addressees (in a form there annexed, which differed from the Second Defendants' apology in the preceding paragraph), disclosure of the extent of their publication, damages of $100,000 as well as legal costs of $10,000. The offer was open for 10 days.
On 12 October 2023, solicitors for the Second Defendants withdrew their offer to make amends and made a further offer to make amends pursuant to section 16 of the Defamation Act. This offer proposed an apology (issued to addressees) and written undertaking and disclosure in effectively the same terms as requested by the Plaintiff in her letter dated 27 September 2023. This offer also offered to pay the Plaintiff's reasonable legal expenses limited to $3,000 and stated that the$10,000 sought by the Plaintiff on 27 September 2023 was not reasonable. Once more, the Second Defendants referred to their financial position in making no offer of compensation in terms of damages.
On 15 December 2023, the Plaintiff responded indicating she did not see utility in further communications given the factual disparities between the parties. She also responded directly to the Second Defendants' asserted impecuniosity by observing they owned real property and a successful business.
(1) In awarding costs in defamation proceedings, the court may have regard to:
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(a) 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
(b) any other matters that the court considers relevant.
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(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):
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(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) 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.
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(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.
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The plaintiff is a legal practitioner. She has acted on her own behalf throughout this action. She is not entitled to recover any professional costs for representing herself in the action.[1]
The plaintiff is however entitled to recover costs associated with briefing counsel and disbursements. The hourly rates charged by counsel appear to have been under, or at least did not exceed, the hourly rates specified in the Legal Profession (Supreme and District Court) (Contentious Business) Determination 2022 (WA) and the Legal Profession (Supreme and District Court) (Contentious Business) Determination 2024 (WA). Trial counsel's fees appeared to be significantly lower than the maximum allowable under the 2024 Determination.
In short, the plaintiff contends an order for indemnity costs should be made because none of the defendants made a reasonable offer to settle. She contends that one order for costs against all defendants should be made with the result that each defendant is jointly and severally liable for the plaintiff's costs, though to reduce the scope for a dispute between the defendants, she proposes the court should fix a percentage for which each defendant is liable.
The action concerned two defamatory publications. The first defendant was the publisher of one publication and all three defendants were the publishers of the other. Separate awards of general damages were made in respect of each publication. The plaintiff did not succeed in her claim for special damages. It follows that in the assessment process no allowance should be made for the getting up of the plaintiff's special damages claim.
By reason of the first defendant's non-compliance with a springing order made on 5 August 2024 the plaintiff became entitled to judgment for damages to be assessed and for costs to be assessed on 30 August 2024 though the plaintiff did not in fact enter judgment as she was entitled to do. The relevant consequence of the order of 5 August 2024 is that the plaintiff's entitlement to costs to 30 August 3024 and the basis on which those costs are to be assessed (that is on a party and party basis) have already been determined. No order has been made in respect of the costs of the assessment of damages payable by the first defendant in respect of the defamatory publication for which he was solely responsible.
The second defendants did make settlement offers (the third defendant was the alter ego of the second defendants and its position does not require separate consideration). In my judgment the final offer made by the second defendants on 12 October 2023 was a reasonable offer. It included an apology in the terms sought by the plaintiff to be provided to those persons to whom the defamatory statement had been made, an undertaking not to make any further publication, disclosure of the existence of any publication of which the plaintiff was previously unaware and a contribution of $3,000 to the plaintiff's costs. The offer did not include an offer of financial compensation but that must be seen in the light of the fact the plaintiff had not sought any financial compensation in her concerns notice. Given that the plaintiff was acting for herself the offer of $3,000 in respect of costs was reasonable. In my judgment the interests of justice require the second defendants' liability for costs be assessed otherwise that on an indemnity basis, that is on a party and party basis.
Having regard to the following matters:
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(a) it has been determined that the first defendant is to pay the plaintiff's costs up to 30 August 2024 on a party and party basis;
(b) the interests of justice require that the costs payable by the second defendants are to be paid on a basis other than an indemnity basis;
(c) all defendants are jointly liable for the second defamatory publication; and
(d) the impracticality of a differential assessment of costs between the defendants,
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it is appropriate to order that the plaintiff's costs be assessed on a party and party basis and be payable by the defendants with the result that each defendant is jointly and severally liable for the entirety of the plaintiff's costs. As between the defendants their respective liability for the plaintiff's costs is to be apportioned as to 50% to the first defendant and 50% to the second and third defendants.
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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.