Abbott v Random House Australia Pty Ltd [1999] FCA 1540

FEDERAL COURT OF AUSTRALIA

Abbott v Random House Australia Pty Ltd [1999] FCA 1540 COSTS – appeal against refusal to award indemnity costs. Re Wilcox; Ex parte v Venture Industries Pty Ltd (1996) 141 ALR 727 referred to

THE HON ANTHONY JOHN ABBOTT AND MARGARET VERONICA ABBOTT AND THE HON PETER HOWARD COSTELLO AND TANYA PAMELA COSTELLO V RANDOM HOUSE AUSTRALIA PTY LTD

NO. A 51 OF 1999

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.

DATE: 10 NOVEMBER

PLACE: SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A 51 OF 1999

DISTRICT REGISTRY

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE HON ANTHONY JOHN ABBOTT AND MARGARET VERONICA ABBOTT

First Appellants

THE HON PETER HOWARD COSTELLO AND TANYA PAMELA COSTELLO

Second Appellants

AND: RANDOM HOUSE AUSTRALIA PTY LTD

Respondent

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.

DATE OF ORDER: 10 NOVEMBER 1999

WHERE MADE: SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT: 1. The appeal be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 51 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE HON ANTHONY JOHN ABBOTT AND MARGARET VERONICA ABBOTT

First Appellants

THE HON PETER HOWARD COSTELLO AND TANYA PAMELA COSTELLO

Second Appellants

AND: RANDOM HOUSE AUSTRALIA PTY LTD

Respondent

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.

DATE: 10 NOVEMBER 1999

PLACE: SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION 1 The background to this appeal appears from our reasons for judgment, delivered concurrently with these reasons, in appeals by the present respondent, Random House Australia Pty Ltd ("Random House"), against a judgment and orders of Higgins J awarding damages to the present appellants in defamation actions brought against Random House. In his reasons for that judgment and those orders, his Honour reserved the question of the costs of the actions for argument. The plaintiffs then applied for costs on an indemnity basis. However, his Honour refused that application, making instead an order for costs in the plaintiffs' favour on the usual party/party basis. The plaintiffs now appeal from his Honour's refusal to award indemnity costs. 2 The grounds of the present appeal are that the primary Judge erred in finding that the conduct of Random House in failing to admit liability did not warrant an indemnity costs order. The appellants submit also that the conduct of Random House in (a) refusing the appellants' offers of compromise; (b) failing to disavow the matter complained of and to apologise to the appellants for publishing it; (c) failing to take prompt or effective steps to withdraw the first edition of the book containing the matter complained of from further dissemination; and (d) failing to make a reasonable or realistic settlement offer – was so unreasonable as to warrant an indemnity costs order, or alternatively, an order that Random House pay the costs of the appellants on a solicitor/client basis. The appellants further contend that his Honour erred in treating the award of aggravated damages, which he had already made, as a factor militating against the making of an indemnity costs order. 3 The appellants now seek an order that the order for costs made at first instance be set aside, and in lieu thereof, it be ordered as follows: "[Random House] pay the appellants' costs of and incidental to the proceedings generally, including the costs of and incidental to the application for indemnity costs, on an indemnity basis, that is that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the appellants will be completely indemnified by the respondent for their costs." 4 Alternatively, the appellants now seek an order that Random House pay their costs of the trial on a solicitor/client basis.