Stanton v Fell

Judgment 1This claim arises out of defamation proceedings unsuccessfully brought by the plaintiff, Dr Arthur Stanton, against the defendant Mr (or Dr) Gary Fell. The plaintiff's claim in defamation failed, for five independent reasons: Stanton v Fell [2013] NSWSC 1001. I dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant's costs. The defendant now seeks an order that the costs be paid on an indemnity basis. Section 40 of the Defamation Act 2005 (NSW) relevantly provides: "40 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 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. (2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise): (a) ... (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. (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." 2The questions which arise are: (i) Did the plaintiff unreasonably fail to accept a settlement offer made by the defendant?; (ii) If so (and only if so) do the interests of justice require otherwise than an order that the costs be paid on an indemnity basis? 3In Haddon v Forsyth (No 2) [2011] NSWSC 693 I held that, for failure to accept a settlement offer to be unreasonable, more is required than that the plaintiff is unsuccessful in the proceedings. I adhere to that view. 4It is necessary to set out a short history: (i)at material times the plaintiff was a vascular surgeon attached to the Wollongong Hospital. The defendant was the Chair of the Board of Vascular Surgery ("BVS"), an organisation that, inter alia, managed and supervised the training of vascular surgeons. The plaintiff was in significant conflict with the other vascular surgeons at the Hospital. The publication on which the plaintiff sued was an email communication sent by the defendant on 19 September 2011 to a medical colleague of the plaintiff at the Wollongong Hospital. It was given some further, but very limited, republication. The email communicated a decision of the BVS, that, in effect, requested that the plaintiff not be involved in the training of vascular surgeons (although the plaintiff was not named); (ii)by letter dated 12 July 2012 solicitors acting for the plaintiff sent to the defendant, pursuant to Pt 3 of the Defamation Act, a "concerns notice". In the letter, the solicitors asserted that the email sent by the defendant conveyed two imputations that seriously defamed the plaintiff and were "completely false". They claimed that the publication "deeply distressed" the plaintiff and injured his personal and professional reputations, and resulted in substantial economic loss and legal costs. The letter asserted that the publication resulted in the plaintiff's suspension from his position as vascular surgeon attending on the public list at Wollongong Hospital. It purported to offer the defendant an opportunity to make amends and stated that if the defendant agreed to the offer then set out, the plaintiff would agree not to sue in defamation in relation to the publication of the email. They requested that the defendant undertake: