Amalgamated Television Services v Marsden

[1999] NSWCA 319

CITATION:	Amalgamated Television Services v Marsden [1999] NSWCA 319
FILE NUMBER(S):	CA 40502/99
HEARING DATE(S):	18 August 1999
JUDGMENT DATE:	31 August 1999
PARTIES :	Amalgamated Television Services Pty Ltd v John Marsden
JUDGMENT OF:	Mason P; Meagher JA; Handley JA

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	CLD 20223/95 CLD 20592/96
LOWER COURT JUDICIAL OFFICER:	Levine J

COUNSEL:	C: WH Nicholas QC; JS Wheelhouse SC O: G O'L Reynolds SC; RG McHugh
SOLICITORS:	C: Mallesons Stephen Jaques, Sydney O: Phillips Fox, Sydney
CATCHWORDS:	Reasons for orders previously made - Leave to appeal subject to conditions - Conditional stay - Requirement of solicitor's undertaking to repay moneys if appeal successful
CASES CITED:	Public Trustee v Nash (1920) 38 WN (NSW) 142 Piglowska v Piglowski [1999] 1 WLR 1360 TCN Channel 9 v Antoniadis (No 2) [1999] NSWCA 104 Hood Bars v Crossman & Prichard [1897] AC 172 Re Kerly, Son & Verden [1901] 1 Ch 467
DECISION:	Leave to appeal granted subject to conditions

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40502/99
CLD 20223/95
CLD 20592/96
MASON P
MEAGHER JA
HANDLEY JA

Tuesday, 31 August 1999
AMALGAMATED TELEVISION
SERVICES PTY LTD v John MARSDEN
JUDGMENT

1    THE COURT: At the conclusion of a lengthy leave application we made the following orders:

1 Subject to orders 2 and 3, grant leave to appeal.
2 Stay execution of orders 1-3 made by Levine J on 28 June 1999 until further order or disposal of the appeal.
3 Subject to the opponent’s solicitor’s undertaking to repay the money if the Court of Appeal should set aside the said orders of Levine J, order the claimant to pay $240,000 on account of the opponent’s entitlement to costs under those orders, such payment to be amenable to an order for restitution in the event that those orders are set aside. Payment is to be made within 14 days.
4 Subject to further order, direct that the hearing of the appeal stand over until after the conclusion of the trial.

2    The claimant’s (defendant’s) application to amend particulars of justification of defamation spanned thirty-eight days. Levine J’s 199 page judgment of 23 June 1999 sets out the extent and intensity of the issues raised by the opponent (plaintiff) in opposition (Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619). The claimant was successful. 3 A major, discrete, but related dispute related to the opponent’s motion to set aside the claimant’s subpoena to the NSW Police Service. Serious allegations of unlawful and/or dishonourable conduct were raised against police officers and the claimant’s solicitor. Several days were spent cross-examining these people. The “guesstimates” of counsel were that this issue took between twenty-five and sixty per cent of the combined hearing. This motion was dismissed by his Honour. 4 For reasons given in a separate judgment delivered on 28 June 1999, the claimant was ordered to pay all of the costs of the two motions, despite its success in each. Those costs were ordered to be payable forthwith upon assessment (cf Pt 52A rr8 and 9). The costs have yet to be assessed - itself a protracted and expensive exercise - but they were estimated by the opponent to exceed $1,000,000. Added to that is the burden of the claimant’s own costs of the application which will have to be borne by it if the costs orders stand. 5    Costs are relevantly in the discretion of the Court. Nevertheless, it was common ground that it would be usual to order the applicant for an amendment to pay the costs of and occasioned by the amendment, such costs to include costs of the amendment application (even if contested). It was also common ground that a proper exercise of the judicial discretion would take into account whether or not opposition to the amendment was unreasonable or unreasonably prolonged (cfPublic Trustee v Nash (1920) 38 WN (NSW) 142). 6 The claimant submitted that thirty-eight days opposition, including opposition on some of the grounds advanced, was unreasonable notwithstanding the primary judge’s conclusion to the contrary. It was also submitted that the separate issues litigated in the unsuccessful motion to set aside the claimant’s subpoena should have been reflected in a separate costs order (in the claimant’s favour) on that motion. Were such an order to be made, or were the costs of both applications to be made costs in the proceedings (cfPublic Trustee v Nash), then, in all probability, no money would be payable to the opponent on account of costs at this stage. 7    The parties had signalled a contested stay application in the event that leave were granted. The opponent had, over the claimant’s objection, persuaded the Court to entertain the leave application separately. On the opponent’s submission, more than a week would have to be set aside for the hearing of the appeal. The estimate is quite excessive, but it reflects both the intensity of the dispute and the tactical manoeuvrings which have been part and parcel of this litigation from its inception. In these circumstances, the Court was reluctant to interrupt further the preparation for a trial scheduled to commence later this year. And it was perceived unlikely that any appeal would be expedited. 8    Material placed before us (transcript pp14-15) indicated that a contested costs assessment would take at least six months. In other words, this time would elapse before the claimant might expect to enjoy the fruits of the orders made in his favour. A long and expensive fight lay ahead of the opponent, with an uncertain outcome given the grant of leave to appeal. 9    Fairly early in the application (Tr p16), the parties were invited to address the conditions of a stay in the context of the claimant being put on terms that it would pay provisionally a proportion of the costs order in the opponent’s favour. The Court was conscious of the reasons which had moved the trial judge to order that costs be assessed forthwith. 10    During the afternoon, it was announced that the Court was disposed to grant leave subject to conditions. We were persuaded to grant leave having regard to the important issues involved (cfPiglowska v Piglowski [1999] 1 WLR 1360 at 1373 per Lord Hoffmann) and our assessment that the claimant had established an arguable case as regards the issues raised in par 6 above. 11 It was also disclosed that the Court was anxious to obviate a separate contested stay application (Tr p48). The claimant raised concern about its capacity to obtain effective restitution of moneys paid over, in the event that the appeal succeeded, particularly if it succeeded at a time when vast additional sums of money had been spent in the litigation. CfTCN Channel 9 v Antoniadis (No 2) [1999] NSWCA 104. The parties’ attention was drawn to the practice discussed in Hood Bars v Crossman & Prichard [1897] AC 172. 12 The Court was then informed, without objection or dispute, that the opponent’s solicitor had taken security over the opponent’s real estate. This meant that, if the main litigation proceeded to a stage where the opponent’s funds were exhausted, then the opponent’s solicitor would stand in a preferred position to the claimant in the event of restitution being ordered in the claimant’s favour. Since it was open to the opponent and his solicitor to negotiate any necessary variation of the existing security so as to put things on an even footing, the obtaining of the solicitor’s undertaking was perceived as a practical and fair way to ensure that the opponent did not bear the entire risk of being left out of pocket in the event that the appeal on the costs issue succeeded. 13 In these circumstances, we made the orders indicated above. 14 The Court having foreshadowed the orders, Mr Reynolds SC rose promptly to his feet to indicate that the undertaking would not be given. This suggests perhaps that he was under the misapprehension that the Court was seeking an undertaking to itself where the practice referred to required a solicitor’s undertaking to the opposite party and its solicitors (cfRe Kerly, Son & Verden [1901] 1 Ch 467). We proceeded to make the orders which, in terms, allow, inter alia, the opponent and his solicitors the option of an interim payment on terms if they choose.

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