Resolution of proceedings without hearing, Uniform Civil Procedure Rules 2005 Part 20 – appeal dismissed – defamation – accepted ‘offer of amends’, Defamation Act 2005 Part 3 Divison 1
In 2015 Nationwide published an article in The Sunday Telegraph which conveyed imputations to the effect that Mr Vass had “dealt inappropriately” with a five-panelled artwork by selling one of its component panels separately, contrary to a term of the contract for sale that it must not be broken up. Our client serviced Nationwide a concerns notice alleging these imputations were defamatory. Subsequently, Nationwide sent Mr Vass the first offer of amends agreeing to not republish the imputations remaining “open to be accepted until the commencement of the trial, unless withdrawn in writing.”
Our client rejected this offer due to no compensation offered and sent Nationwide an offer of compromise as per Pt 20 of the Uniform Civil Procedure Rules 2005 (NSW) seeking $149, 001 in damages. Nationwide then withdrew their first offer of amends and gave a ‘renewed offer’ of $50, 000 in damages. Our client put forth a second offer of compromise to which Nationwide did not respond. Before trial commenced for the proceedings, our client wrote to Nationwide accepting its second offer of amends (‘the renewed offer’). In response, Nationwide argued that our client rejected the first offer of amends by offering the second offer of compromise and was therefore no longer open for acceptance. The defendant argued that our client’s second offer of compromise was, erroneously in fact, a counter offer nullifying the second offer of amends.
The Court of Appeal dismissed the appeal brought forth by Nationwide News Pty Ltd (‘Nationwide’) against our client. This appeal was based on Nationwide’s claim that our client had automatically accepted an offer of amends and settled defamation proceedings, by arguably accepting an ‘offer of amends’ made by Nationwide pursuant to Pt 3, Div 1 of the Defamation Act 2005 (NSW). Nationwide argued that our client’s second offer of compromise was a ‘counter offer’ and an ‘implied rejection’ as deemed in contract law, which therefore implicitly declined their second offer of amends. McCallum J disagreed with Nationwide’s argument and dismissed the appeal in favour of our client.
McCallum J determined that our client validly accepted the offer of amends and rejected Nationwide’s argument that Mr Vass’s second offer of compromise was a counteroffer that implicitly rejected the defendant’s second offer of amends. It is noteworthy that in this case a clear demarcation of Defamation Law (particularly, the ‘amends provisions’) and contract law were deemed by her Honour as wholly separate areas of law. Her Honour stated that the ‘amends provisions’ of the Defamation Act establish a ‘discrete scheme’ which operates independently of ordinary contractual principles of ‘offer’ and ‘acceptance’ to those of the offers of compromise provisions outlined in UCPR Pt 20. Furthermore, as the defendant’s offer of amends was not withdrawn ‘in writing’ as it initially stated, it remained open for acceptance by our client despite the second offer of compromise.
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