A settlement offer in defamation proceedings that includes a confidentiality condition may be found unreasonable under s 38(2)(a) of the Defamation Act 2005 (SA) because the condition removes the plaintiff's ability to point publicly to the settlement amount in vindication of reputation, increasing the true disparity between the offer and the trial award. A defendant's failure to negotiate following a plaintiff's offer that signals willingness to negotiate may constitute an unreasonable failure to make a settlement offer under the first limb of s 38(2)(a), even if the defendant was not unreasonable in declining the specific offer under the second limb. An obvious pleading deficiency does not justify a low settlement offer where the deficiency is highly likely to be remedied before trial.
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