Charlotte Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542

New South Wales Supreme Court

CITATION : Charlotte Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542

HEARING DATE(S) : 21.05.07

JUDGMENT DATE : 31 May 2007

JUDGMENT OF : Nicholas J

DECISION : para 27

CATCHWORDS : Procedure – Supreme Court procedure – Procedure under Rules of court – Offer of compromise – offer accepted – whether plaintiff entitled to entry of judgment – purpose of compromise regime under Uniform Civil Procedural Rules 2005 (NSW) – operation of r 20.27(3), r 20.29

LEGISLATION CITED : Civil Procedure Act 2005 s 90, s 133 Uniform Civil Procedure Rules 2005 r 12.1, r 20.26, r 20.27, r 20.29, r 36.11

Bailey v Marinoff (1971) 125 CLR 529 Cooper v Williams [1963] 2 QB 567 CASES CITED : Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146

PARTIES : Charlotte Dawson - plaintiff ACP Publishing Pty Ltd - defendant

FILE NUMBER(S) : SC 20121/02

COUNSEL : T Molomby SC/R Rasmussen - plaintiff M O'Brien solicitor - defendant

SOLICITORS : G J Godden - plaintiff Johnson Winter & Slattery - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

Nicholas J

31 May 2007

20121/02 Charlotte Dawson v ACP Publishing Pty Ltd JUDGMENT 1 His Honour: Following her acceptance of the defendant's offer of compromise in these proceedings, the plaintiff sought orders for judgment in the sum of $225,000.00, and for payment of costs as agreed or assessed. The defendant opposed the claim. It contended that the proceedings should be finally disposed of by an order that they be permanently stayed, or by giving leave to the plaintiff to discontinue, and it be ordered to pay the plaintiff's costs up to the date of the offer of compromise. 2 The relevant background is as follows. 3 In these proceedings the plaintiff claimed damages in defamation against the defendant arising out of the publication on about 4 September 2000 of an article in the magazine "Woman's Day". On 22 April 2003, in a trial pursuant to s 7A Defamation Act 1974, the jury found that the publication conveyed the five defamatory imputations of which she complained. The defendant defended the claims on a number of grounds, including truth and contextual truth. 4 On 19 March 2007 the defendant's solicitors served an offer of compromise upon the plaintiff's solicitors in the following terms: "The Defendant offers to compromise the Plaintiff's claim in the proceedings in the following manner: 1. Payment by the Defendant to the Plaintiff in the sum of $225,000 plus legal costs as agreed or assessed, in full and final settlement of the proceedings. 2. This offer shall remain open to be accepted until 19 April 2007. 3. This offer is made in accordance with Part 20, Division 4, Rules 20.25 – 32 of the Uniform Civil Procedure Rules." 5 By letter dated 18 April 2007 the plaintiff's solicitors accepted the offer. 6 By letter dated 11 May 2007 the plaintiff's solicitors sought the agreement of the defendant's solicitors to entry of judgment pursuant to r 20.33 and form 28 (version 1). Consent was sought to the following: "The plaintiff and the defendant agree that judgment is to be entered in the following terms: 1. Verdict for the plaintiff in the sum of $225,000.00. 2. Defendant to pay the plaintiff's legal costs as agreed or assessed." 7 The request was refused by the letter from the defendant's solicitors of 17 May 2007 which included the following: "We confirm our view that your client is not entitled to judgment because of the terms of paragraph 1 of the Offer of Compromise which provides as follows: "Payment by the Defendant to the Plaintiff in the sum of $225,000 plus legal costs as agreed or assessed, in full and final settlement of the proceedings" . In our view, the reference to the "settlement of the proceedings" in the Offer indicates that on acceptance of the offer, the proceedings have thereby settled and therefore entry of Judgment would neither be applicable nor appropriate. We confirm however that our client is agreeable to the proceedings being discontinued with an order that our client pay your client's costs as agreed or assessed." 8 In my opinion, the defendant was entitled to refuse to agree to the entry of judgment as proposed. This is because the plaintiff sought judgment by agreement pursuant to Div 5, Pt 20, r 20.33 which was repealed by UCPR (Amendment No. 13) 2007, effective on 5 April 2007. However, nothing turns on this situation for the purpose of this application, and it was not referred to by either party. 9 Payment of the agreed amount was made to the plaintiff prior to the hearing of the motion on 21 May 2007. 10 Part 20 UCPR contains a number of divisions which provide rules for the resolution of proceedings without a hearing, including by way of mediation, arbitration, reference to referees, and compromise. The procedure to facilitate the compromise of proceedings is governed by the rules in Div 4 which, relevantly, provide: "20.26 (1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. … (3) A notice of offer: (a) must bear a statement to the effect that the offer is made in accordance with these rules, and … (6) An offer may be expressed to be limited as to the time it is open for acceptance. … (8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer. … 20.27 (1) A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer. … (3) If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly. … 20.29 (1) If the plaintiff, being a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled: (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the proceedings be dismissed, and to judgment accordingly, as the defendant elects, unless the court orders otherwise. (2) If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled: (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the defence be struck out, and to judgment accordingly, as the plaintiff elects, unless the court orders otherwise." 11 Relevant to judgments and orders generally are the following provisions of the Civil Procedure Act (the Act): "90 (1) The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires. … 133 (1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules." 12 UCPR, Pt 36, r 36.11 includes: "36.11 (1) Any judgment or order of the court is to be entered.