Zimmerman v Perkiss (No 3) [2022] NSWDC 635

Zimmerman v Perkiss (No 3) [2022] NSWDC 635

The plaintiff was unsuccessful in the defamation proceedings and, despite the defendant's wrongful conduct in sending the messages, the plaintiff's solicitors failed to engage in any meaningful way with the concerns notice process and did not respond to the defendant's Calderbank offer made after the serious harm...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Civil Defamation Proceedings; Costs Application / Application for Costs After Dismissal of the Plaintiff's Claim at a Preliminary Serious Harm Hearing Under S 10 a of the Defamation Act 2005 (nsw)
Outcome
Application granted; indemnity costs ordered for the defendant for the whole of the proceedings.
Legal Topics
['serious Harm' 'indemnity Costs' 'concerns Notice Procedure' 'calderbank Offer' 'settlement Offers' 'costs Following the Event']
['defamation' 'civil Procedure' 'costs'] ['serious Harm' 'indemnity Costs' 'concerns Notice Procedure' 'calderbank Offer' 'settlement Offers' 'costs Following the Event']

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Procedural Posture

Civil Defamation Proceedings; Costs Application / Application for Costs After Dismissal of the Plaintiff's Claim at a Preliminary Serious Harm Hearing Under S 10 a of the Defamation Act 2005 (nsw)

Legal Issues

  1. 1 ['Whether the successful defendant should receive costs of the proceedings on an indemnity basis under s 40 of the Defamation Act 2005 (NSW).' "Whether the plaintiff unreasonably failed to engage with the concerns notice process and the defendant's settlement offers." "Whether the defendant's wrongful publication, alleged goading of the plaintiff into litigation, or the asserted test case nature of the proceedings warranted no costs order or ordinary costs only."]

Ratio Decidendi

The plaintiff was unsuccessful in the defamation proceedings and, despite the defendant's wrongful conduct in sending the messages, the plaintiff's solicitors failed to engage in any meaningful way with the concerns notice process and did not respond to the defendant's Calderbank offer made after the serious harm issue had been set down for preliminary determination. Having regard to s 40 of the Defamation Act 2005 (NSW), the policy behind ss 10A and 12A, and the settlement correspondence, the plaintiff was required to pay the defendant's costs of the whole proceedings on an indemnity basis.

Court Disposition

Application granted; indemnity costs ordered for the defendant for the whole of the proceedings.

Orders

  • ["The plaintiff to pay the defendant's costs of these proceedings on an indemnity basis."]