The Court dismissed an appeal by Alan Jones, Harbour Radio Pty Ltd, and Radio 4BC Brisbane Pty Ltd against injunctions ordered by the trial judge which restrained each appellant from again publishing matter and imputations found to be defamatory. The appellants were ordered to pay the respondents’ costs of the appeal. The respondents applied for an order that the costs ordered in their favour be assessed on the indemnity basis rather than on the standard basis.
The main ground of the application was that the appellants’ failed to accept a Calderbank offer made by the respondents to settle the appeal. The offer proposed that the injunctions against Harbour Radio and Radio 4BC would be set aside, the injunction against Mr Jones would be more narrowly expressed, and Mr Jones would be liable to pay the respondents’ costs of the appeal on the standard basis. The offer was open for acceptance for 14 days but noted a request for further time would be considered.
The Court of Appeal determined that although some of the factors regarded as supplying guidance upon the question whether a party’s rejection of a Calderbank offer was unreasonable were present, the circumstances did not justify the making of an order on an indemnity basis because:
- the rejection of the appellants’ grounds of appeal does not of itself suggest that any appellant did not have a reasonably arguable basis for pursuing an appeal against the trial judge’s decision to grant injunctions against the appellants;
- the offer proposed different outcomes in respect of the media companies and Mr Jones but could only be accepted if all three appellants agreed to accept the offer;
- the appellants’ conduct was not imprudent and unreasonable.
The judgment is available here.