Section 40 of the Defamation Act 2005 (NSW) does not apply to the costs of an appeal — its references to 'defamation proceedings' brought by a 'plaintiff' against a 'defendant' do not extend to appellants and respondents. An offer of amends that is not a reasonable offer at the time it was made does not constitute a 'settlement offer' under s 40(3), and a defendant who has made only unreasonable offers of amends may be found to have unreasonably failed to make a settlement offer. The slip rule may be invoked to correct orders where relief sought in a notice of appeal was overlooked at the hearing due to counsel's inadvertence. The question whether s 14 of the Civil Procedure Act can override the prohibition in UCPR r 36.16(3C) on extending the 14-day time limit remains open.
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