Section 40 — Defamation Act 2005 (NSW)

(1) In awarding costs in defamation proceedings, the court may have regard to—
(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings), and
(b) any other matters that the court considers relevant.
(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or
(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3) In this section—
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.

Related sections

• s 38 — Factors in mitigation of damages
• s 39 — Damages for multiple causes of action may be assessed as single sum
• s 39A — Orders against non-party digital intermediaries concerning defamatory digital matter
• s 41 — Proof of publication
• s 42 — Proof of convictions for offences
• s 43 — Incriminating answers, documents or things

Research how courts apply s 40

BriefBridge searches NSW and High Court caselaw by meaning — every answer cited to the paragraph.