Defamation actions - taking the tiger by the tail

The long-running near eight‑year defamation stoush between former building business partners Julian Walter and Len Buckeridge ended last week.¹

Well-known Perth home building magnate Julian Walter applied to the Supreme Court to discontinue two defamation claims he had on foot against Perth construction icon Len Buckeridge and his company BGC.  Not surprisingly, the defendants consented to Mr Walter pulling stumps on his claims.

But Mr Walter also sought orders the Court should not make any orders as to costs of the actions, and that costs orders made during the eight-year legal battle be vacated.  Not surprisingly, the defendants opposed any such orders being made in those terms ‑ they wanted their costs paid.

The actions were discontinued.  But costs orders were made.  Media reports suggested that Mr Walter will be paying more than a $1 million to the defendants, Mr Buckeridge and BGC in (part) satisfaction of their costs.

Mr Walter's reasons for wanting to abandon his defamation odyssey after eight years and seemingly getting nowhere, which he set out in an affidavit, were extracted in His Honour Justice Le Miere's judgment.  Mr Walter said:

I am tired, frustrated and fed-up with this litigation which has been going since December 2003.  I feel that all I have been doing for the past seven or so years since commencing the Actions is paying legal bills and devoting inordinate amounts of my time and effort to something I believe no longer carries any value or beneficial purpose for me, given these defamatory publications were made in December 2003.  I am also frustrated because I feel that technical legal disputes and interlocutory disputes and applications have consistently and repeatedly impeded my efforts to clear my reputation through the Actions.

I am fed up because, after more than seven long hard years, I feel there is a long way to go, and any benefits that I might achieve from being successful at trial will be outweighed by the detriment, costs and time and stress that would be involved in pressing any matters to trial. This includes stress to my family. I do not see any point in continuing the Actions which I believe would also be a waste of the Court's time and resources (as well as a waste of time of witnesses).

But Mr Walter's contentions that the costs should fall to be borne by the parties was rejected by the judge.  The Court has power to award costs when a plaintiff discontinues a case.  This discretion was exercised in this case. 

Justice Le Miere passed comment on Mr Walter's 'no costs order' submissions.  His Honour made the following observations:

Mr Walter is an experienced and sophisticated businessman.  Prior to commencing the actions he was represented by a national firm of solicitors with experience in defamation matters.  Mr Walter must be taken to have known when he commenced these actions that defamation actions often involve or give rise to questions of considerable difficulty and the costs of prosecuting such actions are likely to be substantial and may well exceed the quantum of damages likely to be recovered if the plaintiff succeeds. 

Before the writs were issued, Mr Buckeridge made it clear, through his solicitors, not only that the claims would be resisted but that they would be defended on the ground of justification.  Mr Buckeridge has maintained that position throughout the proceedings and continues to maintain that each of the publications complained of are justified. 

Mr Walter should have expected that prosecuting the actions would involve significant amounts of his time and would be stressful. 

Mr Walter should have expected that any trial of these matters is likely to involve significant publicity and that would be distressing for his family.

In deciding to award costs against Mr Walter, Justice Le Miere also took into account the defendants’ position.  The judge noted the proceedings had reached an advanced stage, the defendants had invested a lot of time and cost in them and they were ready to proceed to trial.  It was also significant that the defendants had put Mr Walter on notice from the outset his claim would be vehemently contested.

That's the long-hand version of showing in action the 'plaintiff taking the tiger by tail' proverb concerning a claimant commencing a defamation action. 

But it's hard not to have sympathy for Mr Walter's position, particularly when His Honour also observed:

I do not find that the plaintiff acted unreasonably in commencing the actions.  The publication complained of in CIV 2549 of 2003 was defamatory of Mr Walter.  There is an issue between the parties concerning the imputations to which the article gives rise.  That issue has not been resolved.

Nevertheless, the defamation is a serious defamation going to Mr Walter's character and his personal and business reputation.  Whilst the defamatory statement was not in a mass media publication it was nevertheless in a publication that was, or was likely to have been, widely circulated amongst people involved in the industry and areas of business in which Mr Walter was involved.

The publication complained of in CIV 2566 of 2003 was made in The West Australian newspaper.  Again, there is an issue between the parties concerning the imputations to which the publication gives rise.  Nevertheless, it is a serious matter going to Mr Walter's creditworthiness or his conduct as a businessman.

In short, although Mr Walter had his reasons for not pressing on with his claims, those reasons did not mean his actions would have been futile or that if he had decided to continue against the defendants that Mr Walter would not have succeeded at trial. 

The upshot of this litigation is that it shows how carefully a plaintiff must think about the road that may lie ahead in issuing defamation proceedings.  All the things that led to Mr Walter’s ultimate frustration are real.  A potential plaintiff must know about the obstacles and road-humps they are likely to confront before they embark on their journey.

Just a tiny fraction of defamation cases that start go all the way to trial.  Only a handful of defamation cases have gone to trial in this State in the last ten years.  The overwhelming majority of cases started settle. 

The defamation journey is a bumpy one.  Not all claimants get to a destination, or at least their preferred one.  It is long and windy road, with many obstacles that need to be navigated.

If you want to take a trip, plan it carefully.