Supreme Court New South Wales Medium Neutral Citation: Vass v Nationwide News Pty Ltd [2018] NSWSC 639 Hearing dates: 19 April 2018 Decision date: 20 April 2018 Jurisdiction: Common Law Before: McCallum J Decision: (1) Declaration that, as at 21 March 2018, the defendant's renewed offer of amends dated 9 May 2017 remained open to be accepted by the plaintiff and that the letter dated 21 March 2018 from the plaintiff to the defendant constituted valid acceptance of that offer; (2) hearing date vacated; (3) defendant ordered to pay the plaintiff's costs of the application determined today Catchwords: DEFAMATION – offer of amends – whether implicitly rejected prior to purported acceptance by intervening offer of compromise by plaintiff – consideration of the proper construction of the offer of amends provisions of the Defamation Act 2005 (NSW) – good sense in construing those provisions so as to reserve to the party making an offer exclusive control to determine the term for which the offer remains open for acceptance Legislation Cited: Defamation Act 2005 (NSW), ss 3, 12(3), 16, 18(1)(c) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 Category: Procedural and other rulings Parties: Damien Vass (plaintiff) Nationwide News Pty Ltd (defendant) Representation: Counsel: T Molomby SC, L Goodchild (plaintiff) D Sibtain, M Lewis (defendant) Solicitors: Vobis Equity Attorneys (plaintiff) News Corp Australia (defendant) File Number(s): 2016/131838 Publication restriction: None Judgment EX TEMPORE - revised 1. HER HONOUR: These are proceedings for defamation commenced by Mr Damien Vass against Nationwide News Pty Ltd. 2. The proceedings are presently listed for hearing commencing on 30 April 2018. However, the need for the hearing to proceed is in doubt owing to a dispute between the parties as to whether the plaintiff has validly accepted an offer of amends made under the provisions of the Defamation Act 2005 (NSW). The determination of that issue turns on whether the offer remained open for acceptance as at the date on which it was purportedly accepted. That issue was brought forward in the Defamation List on 6 April 2018 but, owing to the unavailability of both counsel, was not able to be argued until yesterday. In light of the looming hearing date, the application had to be determined urgently so as to enable the Court to determine whether the hearing date should be vacated. 3. It was clarified at the outset of the hearing that the order sought was a declaration that the letter dated 21 March 2018 from the plaintiff's solicitors constituted a valid acceptance of the defendant's renewed offer of amends dated 9 May 2017. It was common ground that the Court had authority to determine that question within these proceedings. 4. I have concluded that the plaintiff did validly accept the offer (that is, that it remained open to be accepted), for the following reasons. Circumstances in which the dispute has arisen 1. It is necessary to explain the course of dealings between the parties. The plaintiff first sent a concerns notice to the defendant on 8 May 2015, prior to the commencement of proceedings. In response to the concerns notice, the defendant sent an offer to make amends dated 5 June 2015. In short, the terms of that offer included an agreement not to republish the matter complained of or the imputations, to remove the matter complained of from websites within the defendant's control, to publish an apology with various specified features and to pay expenses reasonably incurred by the plaintiff before the offer was made and in considering the offer. It also included a requirement that the plaintiff execute a deed of settlement and release. That initial offer to make amends included no offer to pay any compensation. 2. The letter specified that the offer was relied upon "both as a defence under s 18 of the [Defamation] Act and in support of an application that your client pay my client's costs on an indemnity basis pursuant to s 40 of the Act and the principles in Calderbank v Calderbank." The letter further specified, "this offer remains open to be accepted until commencement of the trial unless withdrawn in writing". 3. By letter dated 10 June 2015, the plaintiff responded in terms addressing the offer of amends and, in particular, complaining that the defendant purported to seek to make amends while leaving the matter complained of online for over a month. Information was provided about recent damages awards and it was contended that, absent any offer to pay an amount by way of compensation, the offer was not reasonable (an assertion which, if correct, would have the consequence in accordance s 18(1)(c) of the Defamation Act 2005 (NSW) that any defence under that section would fail). 4. So far as the evidence before me reveals, the next step in any attempts to compromise the proceedings was a "without prejudice" letter dated 28 April 2017 from the plaintiff to the defendant enclosing an offer of compromise pursuant to the Uniform Civil Procedure Rules 2005 (NSW). That offer contemplated judgment for the plaintiff in the sum of $149,001 and was expressed to be open for 28 days. 5. The defendant responded to the offer of compromise by withdrawing its offer to make amends dated 5 June 2015 and making a renewed offer, as allowed under s 16 of the Act. The renewed offer was in substantially the same terms as the original offer except that, in addition to the terms of the original offer, it included an offer to pay $50,000 by way of damages. The letter contained the same concluding paragraphs as the original offer, importantly including the statement that the offer remained open to be accepted until commencement of the trial unless withdrawn in writing. 6. It appears the next step in the parties' attempts to resolve the proceedings came in a further offer of compromise sent by the plaintiff to the defendant dated 30 January 2018. That offer provided for judgment for the plaintiff in the sum of $449,001 and again was expressed to be open for acceptance for a period of 28 days. 7. In short, the defendant's contention is that that offer of compromise implicitly rejected the renewed offer of amends dated 9 May 2017. 8. By letter dated 21 March 2018, the plaintiff purported to accept the offer of amends dated 9 May 2017. The defendant responded by contending that the letter proceeded upon an erroneous assumption that the offer remained open for acceptance. As already noted, it was contended that, by making a counter offer on 30 January 2018, the plaintiff had rejected the offer of amends. 9. The plaintiff then relisted the proceedings (appropriately) for the reason I have identified, namely, to ascertain whether, in the circumstances, the hearing date should be vacated. 10. The defendant's submissions in response noted that no process had been filed by the plaintiff seeking specific performance of the purported concluded agreement resulting from the acceptance of the renewed offer of amends. That issue was canvassed at the outset of the hearing yesterday. As I understood the position, it was common ground that the appropriate course for the Court to take was to determine the issue whether the offer of amends was validly accepted but not to proceed to determine any question as to whether specific performance should be granted in respect of any such concluded agreement. The defendant expressly stated that, even if the plaintiff obtains a declaration that the renewed offer of amends was validly accepted, the defendant will refuse to perform the agreement reached because the defendant contends it was obtained by misrepresentation. 11. The plaintiff submits that the issue is a simple one, the offer having been expressed in terms to be open until the trial unless withdrawn in writing. The offer was accepted before the trial commenced and had not been withdrawn in writing. 12. Mr Molomby SC, who appears with Ms Goodchild for the plaintiff, accepted that, under normal principles of contract, a counter offer implicitly rejects an offer. However, he submitted that, here, the plain terms of the offer mean that the only way in which it would not be open for acceptance before trial is if it were withdrawn in writing by the party that made it. Mr Molomby submitted that, as there was no such withdrawal, the offer remained open. 13. Both parties relied upon the same passage from the judgment of Heydon JA in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [80] on this issue. After noting authority to support the possibility of finding a contract in the absence of offer and acceptance (where the parties have agreed to incur reciprocal promissory obligations), his Honour said: "If offer and acceptance analysis is not always necessary or sufficient, principles such as the general principle that a rejection of an offer brings it to an end cannot be universal. A rejected offer could remain operative if it were repeated, or otherwise revived, or if in the circumstances it should for some other reason be treated, despite its rejection, as remaining on foot, available for acceptance, or for adoption as the basis of mutual assent manifested by conduct." 1. Mr Molomby submitted that, in the context of the provisions for offers of amends in the Defamation Act 2005, an offer should, "for some other reason" be treated as remaining open notwithstanding the making of an intervening offer of compromise by the recipient. 2. As submitted by Mr Molomby, the offer of amends process in the Defamation Act is novel and radical. An important consideration in construing the relevant provisions is the fact that one of the objects stated in s 3 of the Defamation Act is to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matters. The offer of amends provisions are plainly directed to that end. In particular, those provisions are to be construed as deliberately imposing a very draconian consequence on a plaintiff who does not accept a reasonable offer to make amends, namely, the loss of the cause of action. 3. In the written submissions, each party addressed various absurd consequences it was contended would flow from their opponent's respective construction of the offer of amends provisions. 4. The defendant's submissions focussed primarily on "the obviousness" of the proposition that the making of a counter-offer is an implicit rejection of an offer. They submitted: "The defendant's offer was not expressed to be open for acceptance even if rejected, and no words to that effect would be implied. Such an implication would lead to an absurd result. It would mean that the plaintiff would be able to make multiple counter-offers without affecting the currency of the offer made by the defendant. There is no conduct to which the plaintiff has pointed (or can point) that would lead to a conclusion that the defendant, by its conduct, affirmed, renewed or revived its offer after the plaintiff made its counter-offer." (emphasis in original) 1. The plaintiff's submissions focussed on the statutory object of the offer of amends provisions. Mr Molomby submitted: "If the defendant's position in the current matter is correct, the Act's objectives are significantly undermined. By far the most likely way for a publisher to become aware of "matters of concern raised by the aggrieved person about the withdrawn offer" [a reference to s 16(5)(a)] is through the aggrieved person's response to the offer. That in those circumstances will have been a negative response, most likely importing a rejection of the offer. On the defendant's position, the offer would thereby lapse before there was time to withdraw it. It would then be incapable of being renewed, because a renewed offer may be made only in place of a withdrawn offer, not in place of an offer that has lapsed (s 16(2)). Such a result plays havoc with the objects of the Act. It is inherent in the scheme of the Act that the status of an offer of amends is not affected by anything done by the aggrieved person (or plaintiff). The second of the three conditions to be satisfied to allow the offer to be relied on as a defence is: "at any time before the trial the publisher was ready and willing, on the acceptance of the offer by the aggrieved person, to carry out the terms of the offer". The plain meaning of this condition is that the publisher was so willing at all times from the making of the offer until the trial. "At any time" normally means "always". "No parking at any time" "Visitors welcome at any time". It can also mean at some undetermined but particular moment - "he could come at any time". It cannot have the latter meaning in the context of Section 18, because if it did the effect of the subsection would be completely negated." 1. Mr Molomby was careful to draw my attention to the decision of the Court of Appeal in Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 where the Court held (contrary to the plaintiff's submissions) that an offer of amends may be left open for a fixed term of reasonable duration (as opposed to being required to remain open until the commencement of the trial): per Gleeson JA at [101] to [108]; Ward and Payne JJA agreeing at [184]. Mr Molomby noted that that part of the judgment was obiter and submitted that it was clearly wrong. 2. I am not persuaded that Zoef is clearly wrong in that respect (although it may be difficult, having regard to the draconian consequence of refusing to accept an offer, to argue that an offer closed well before trial was reasonable). However, I do not think that is necessarily fatal to the plaintiff's argument. It is enough for the plaintiff to establish that, on the proper construction of the offer of amends provisions, the term during which an offer of amends remains open for acceptance remains at all times within the control of the party making the offer (who always retains the power to bring an offer to an end by withdrawing it in writing) and cannot be truncated by the making of a counter-offer by the aggrieved party. 3. Accordingly, it is not necessary to resolve all of the anomalies addressed in the written submissions. The Act expressly provides that an offer of amends may be withdrawn in writing (see s 16(1)). As submitted by Mr Molomby, it follows, perhaps not necessarily but at least logically, that that is the only way in which an offer may be withdrawn. The Act specifically provides that the offer of amends provisions stand alongside other means of making and accepting offers to bring proceedings to an end (see s 12(3) of the Act). 4. The critical and determinative question in the present case is whether the making of an offer of compromise under the rules rejected the defendant's renewed offer of amends by necessary implication. I do not think it should be understood in that way. Each kind of offer carried different consequences under their respective statutory regimes and, as already noted, both regimes are expressly preserved under the Defamation Act. The making of an offer of amends under the Act potentially creates a complete defence. It makes sense in that context that such an offer should be required to remain open until expressly withdrawn in a formal way by the party making the offer. Conversely, it makes no sense for the term of the offer (which may be an aspect of its reasonableness) to be within the control of the aggrieved person rather than the party making the offer. The making of an offer of compromise under the rules is calculated to trigger a cost consequence. I do not think such an offer necessarily, by implication, rejects the making of an offer of amends under the Defamation Act, which is calculated to bring proceedings to an end or else avail the person making the offer of a complete defence. 5. It was open to the defendant upon receipt of the offer of compromise under the rules, or indeed at any other time, to withdraw the offer of amends in writing but that never occurred. It follows, in my view, that the offer remained open for acceptance at the time it was accepted. As already indicated, whether or not the agreement thus reached will be amenable to specific performance is a separate question upon which I do not purport to comment in this judgment. 6. The significant finding as sought by the parties is that the offer remained open to be accepted and, as a result, was validly accepted. It follows that there is an agreement between the parties to settle the proceedings, which obviates the need for the hearing and indeed renders it inappropriate for the hearing to proceed. 7. ORDERS: 1. I make a declaration that, as at 21 March 2018, the defendant's renewed offer of amends dated 9 May 2017 remained open to be accepted by the plaintiff and that the letter dated 21 March 2018 from the plaintiff to the defendant constituted valid acceptance of that offer. 2. I vacate the hearing date. 3. I order the defendant to pay the plaintiff's cost of the application determined today. 4. I stand the proceedings over to 25 May 2018. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2018