Palmer v McGowan (No 6) [2022] FCA 927

Palmer v McGowan (No 6) [2022] FCA 927

While Palmer achieved a judgment on his defamation claim, the rejection of McGowan's sensible offer of compromise and Palmer's overall approach were unreasonable in context, justifying an order for Palmer to pay McGowan's costs of the Cross-Claim from 11am on 22 December 2021 on party/party basis, but not on an indemnity basis, to best reflect a just result given the mixed outcomes and conduct.

Parties
Applicant / Cross Respondent: Clive Frederick Palmer; Respondent / Cross Claimant: Mark McGowan
Jurisdiction
Australia
Judgment Date
11 August 2022
Procedural Posture
Civil / Post Judgment (costs Determination)
Outcome
Costs order made: Palmer to pay McGowan's costs of the Cross-Claim from 11am 22 December 2021, otherwise no order as to costs.
Legal Topics
Costs Orders, Defamation Proceedings, Offers of Compromise, Calderbank Offers
Civil Procedure Defamation Costs Costs Orders Defamation Proceedings Offers of Compromise Calderbank Offers

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Parties

Clive Frederick Palmer

Applicant / Cross Respondent

Mark McGowan

Respondent / Cross Claimant

Procedural Posture

Civil / Post Judgment (costs Determination)

Legal Issues

  1. 1 What is the appropriate costs order following judgment in cross-claims for defamation when an offer of compromise was made and rejected?
  2. 2 Whether costs should be awarded on an indemnity basis after the rejection of the offer of compromise.

Ratio Decidendi

While Palmer achieved a judgment on his defamation claim, the rejection of McGowan's sensible offer of compromise and Palmer's overall approach were unreasonable in context, justifying an order for Palmer to pay McGowan's costs of the Cross-Claim from 11am on 22 December 2021 on party/party basis, but not on an indemnity basis, to best reflect a just result given the mixed outcomes and conduct.

Court Disposition

Costs order made: Palmer to pay McGowan's costs of the Cross-Claim from 11am 22 December 2021, otherwise no order as to costs.

Orders

  • The cross-respondent (Palmer) pay the cross-claimant's (McGowan) costs of the Cross-Claim from 11am on 22 December 2021; otherwise, no order as to costs.
  • The order for costs in favour of the cross-claimant be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).