WA Being Sued - Defamation Act 2005

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Clara J

Well-Known Member
12 September 2014
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OK. The only thing that's holding us back from going all guns is the financial side. I want this over and done with as efficiently and as painlessly as possible. I have faith in the legal system, I just hope it comes through. I had no idea it would be this stressful.
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Hi Clara,

There are two types of costs and two stages at which you can get costs.

The types of costs are lawyer/client and party/party. Lawyer/client include fees and charges that are required throughout the course of the matter. This includes filing fees, photocopying, serving fees, secretary fees etc. You will need to pay these fees per your arrangement and seek reimbursement at the end of trial should you win. How you get reimbursement is through party/party costs. This means that the losing party pays for their own costs as well as the costs of the other party (winning party). In theory, they should be reimbursing all your lawyer/client costs should you win. In practice, the other side may dispute your lawyer/client costs as unreasonable and ask for taxation. In this case, the court determines what is reasonable by looking through each item of your bill and awards accordingly. This is all done at the very end of the trial after handing down the decision.

The other stage in which you can be awarded costs is during trial, where you conduct proceedings called "interlocutory proceedings". These proceedings are concurrent to the main trial (hearing). They include applications to dismiss the other side's case for lack of merit, application to extend time, application to have expert witnesses etc. Not every trial has them but if you do, the costs are usually decided at the end of each interlocutory proceeding. The judge decides whether to award costs promptly to the one party (i.e. the party successful in the interlocutory proceeding) or to delay costs, called "costs in the cause", which means that whomever ultimately wins the trial is awarded costs for this interlocutory proceedings by the other side. Such costs are reimbursement of lawyer/client costs (i.e. lawyers' fees as well as disbursements such as filing fees, third party agent fees etc).

Note that in practice, parties usually recover around 2/3 of their actual expenditure through the taxation process. Ask your lawyer to explain this to you should you have any questions. Your lawyer is obliged to make sure you understand everything you need to know about costs and keep you updated at regular intervals on cost projections and approximately how much you have already spent. Also, the $4,000 the lawyer quoted should be broken down to you or at least explained how this is calculated.
 

Clara J

Well-Known Member
12 September 2014
33
1
124
Thanks Sarah. That's brilliant. Essentially what I'm hoping for is that if for whatever reason, the other side pull out or back down, are we able to recover our expenditures or is that only possibly if it goes to court and the case was successful?
 

Rod

Lawyer
LawTap Verified
27 May 2014
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If they pull out after you have been served court papers then you need to sue them to seek recovery of your costs. Not sure if you can do that as part of the current case or you have to file your own case.
 

Clara J

Well-Known Member
12 September 2014
33
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124
Thanks Rod. I've been advised to try and put it in as part of a potential counter-claim/defence.
 

Sarah J

Well-Known Member
16 July 2014
1,314
250
2,389
Melbourne, Victoria
If you settle with the other side before trial ends, then you can ask for costs as part of your settlement. That's more of a matter for negotiation. If the other side withdraws their claim, then essentially you have "won" and you can seek recovery of your costs either through taxation or through your counterclaim. In this case, you can put fort her a positive charge against them or just seek a court declaration that there was no defamation and under what you're seeking, put costs, interest and further relief the court sees fit.
 

Clara J

Well-Known Member
12 September 2014
33
1
124
OK gotcha. Thank you. I was thinking about it today and even his first communication with us even before the defamation claims stated that should he report my boyfriend to the ATO we would be liable for all costs in pursuing that. If that's what he's specifying then I'll definitely be doing the same. He's back me into a corner by reacting negatively to my Consumer Protection complaint so there's no way out for me now. It's either court or nothing. I have a sneaky suspicion that he will back down and just didn't want to have lost out as a result of his erratic behaviour.

Thank you :)
 

Clara J

Well-Known Member
12 September 2014
33
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124
Next time don't say things like that in public forums.
I'm deleting my facebook account when it's all over. Too much drama. It was a private page but still, everyone is just waiting in the wings to screw you over whichever way you turn. Money is ruining human nature
 

Safety Rod

Well-Known Member
3 September 2014
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How would the court see a claim before them where the applicant has not provided any demand in writing, or time for that demand to be met? Surely there is a test of some sort that the claimant must provide what they are claiming to a party, so they may either pay the demand, or otherwise defend it BEFORE any court action is appropriate.