Section 38 of the Defamation Act 2005 (SA) — and by analogy its uniform equivalents in other jurisdictions — is confined to defamation proceedings at first instance and does not apply to appellate proceedings. On appeal, the general discretion as to costs governs. Even if s 38 were to apply, the 'interests of justice' exception may be engaged where the appeal raised arguable points and the defendant made a post-judgment settlement offer.
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