Background
Robert McVicker obtained leave to appeal from a District Court decision in his defamation proceeding against the Australian Broadcasting Corporation, but the Court of Appeal dismissed the appeal on 22 September 2026. The remaining issue was the costs of that appeal.
The ABC had made a Calderbank settlement offer on 27 May 2026, open for seven days. It proposed dismissal of the appeal without an order for costs, removal of the amended publication from its website, and an undertaking not to republish it online. McVicker did not accept the offer.
The Court’s Holding
The Court ordered McVicker to pay the ABC’s appeal costs on the standard basis from 18 December 2025 to 3 June 2026, and on an indemnity basis from 4 June 2026 onward.
Although the appeal was not inarguable and had been conducted efficiently, McVicker should have appreciated by the time of the offer that his prospects were poor. The primary judgment was comprehensive, the ABC had made an offer to make amends, and the appeal did not identify an error of legal principle. The Court also held that seven days was a reasonable acceptance period because submissions had already been exchanged.
The offer provided more than a costs benefit: it required removal of the article and an undertaking not to reinstate it, which substantially addressed the injunctive relief McVicker had sought. His refusal was therefore imprudent and unreasonable.
Key Takeaways
- A rejected Calderbank offer may justify indemnity costs where rejection is unreasonable.
- A seven-day acceptance period can be reasonable when the parties have exchanged appeal submissions.
- Non-monetary relief, including removal and non-republication of online material, is relevant when assessing the value of a settlement offer.
Why It Matters
The decision illustrates the costs risk for an unsuccessful appellant who rejects a clear settlement offer after the appeal’s weaknesses have become apparent. In defamation litigation, an offer addressing both costs and online publication relief may carry particular weight in the Calderbank assessment.