Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339

New South Wales Court of Appeal

CITATION: Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339

HEARING DATE(S): On the papers

JUDGMENT DATE: 28 November 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 2; Basten JA at 30

DECISION: 1. The appellant is to pay the respondent's costs on an ordinary basis up until 16 August, 2006; 2. The appellant is to pay the respondent's costs on an indemnity basis from 17 August, 2006.

CATCHWORDS: COSTS – offer of compromise – offer made under Uniform Civil Procedure Rules 2005 – offer not accepted – offeror received judgment no less favourable than terms of offer – offeror entitled to indemnity costs unless exceptional circumstances – offeree submitted judgment amount only slightly greater than offer – offeree submitted it had a reasonable expectation of success on appeal – offeree submitted appeal on defence of comment embodied right to freedom of speech – decision to refuse offer was unreasonable – no exceptional circumstances

LEGISLATION CITED: Defamation Act 1974 s 7A, 7A(4), 24(3), 24(4) Uniform Civil Procedure Rules 2005 r 20.26, Pt 20 Div 4, r 42.14, Sch 5

Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186 Connor v Hatgis (No 2) (Court of Appeal, 7 December 1995, unreported) CASES CITED: Houatchanthara v Bednarczyk (Court of Appeal, 14 October 1996, unreported) Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 South Eastern Sydney Area Health Service v King [2006] NSWCA 2

PARTIES: Macquarie Radio Network Pty Ltd (Appellant) Arthur Dent (Respondent)

FILE NUMBER(S): CA 40244/06

COUNSEL: B R McClintock SC (Appellant) C A Evatt; C J Dibb (Respondent)