COSTS — defamation proceeding — application for indemnity costs — some offers made by parties prior to commencement of proceeding, including purported offer by the defendant to make amends — applicant relies upon Defamation Act 2005 (NSW), s 40
Quick Take
1Under s 40(3) of the Defamation Act 2005 (NSW), where both parties have made purported settlement offers, the court should assess all offers holistically rather than individually, having regard to the parties' overall conduct under s 40(1)(a).
2A concerns notice that proposes compensation 'to be agreed' without specifying an indicative sum, and does not specify the form of apology, may fail to qualify as a 'reasonable offer' and therefore as a 'settlement offer' under s 40(3).
3An offer to make amends that omits any apology, compensation, or undertaking not to repeat the defamatory allegations is unreasonable and does not qualify as a 'settlement offer' under s 40(3), particularly where the defendant conducted a sustained campaign against the plaintiffs.
