Marshall v Megna; Megna v Tory; Tory v Megna (No 2)

[2013] NSWCA 456

NSW Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Interest on damages
3. › Defamation
4. › Date from which interest calculated
5. › Damage sustained over a period
6. › Midpoint approach
7. › Weighted allocation where publications unevenly distributed
1. Costs
2. › Indemnity costs
3. › Defamation proceedings
4. › Offer of compromise
5. › Non-compliance with UCPR r 20.26
6. › Whether offer referring to costs is compliant
7. › Whether non-compliant offer may operate as Calderbank offer
8. › Uniform Civil Procedure Rules 2005 (NSW), r 20.26
9. › Defamation Act 1974 (NSW), s 48A
1. Costs
2. › Indemnity costs
3. › Appeal proceedings
4. › Whether fresh offer of compromise required for indemnity costs on appeal

Quick Take

Where defamation damages are assessed as a global sum for publications over a period, interest is calculated from a weighted midpoint reflecting the distribution of publications, not by notionally allocating equal damages to each publication. An offer of compromise that does not comply with UCPR r 20.26 (because it refers to costs) may still operate as a Calderbank offer where it is headed 'without prejudice save as to costs' and clearly indicates an intention to settle. A fresh offer of compromise must be made in relation to appeal proceedings to support a claim for indemnity costs on appeal.