Bauer Media Pty Ltd v Wilson (No 3) - [2018] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0109

BAUER MEDIA PTY LTD (ACN 053 273 546) and BAUER MEDIA AUSTRALIA PTY LTD (ACN 160 041 681)	Appellants
v
REBEL MELANIE ELIZABETH WILSON [No 3]		Respondent

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JUDGES:	TATE, BEACH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	On the papers
DATE OF JUDGMENT:	27 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 164

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PRACTICE AND PROCEDURE – Judgments – Interest – Repayment of part of judgment sum following successful appeal – Restitutionary interest – Costs – Costs of proceeding at first instance – Costs of appeal – Settlement offer – Whether costs of trial should be on indemnity basis – Both parties succeeding and failing on some issues – Whether costs should be apportioned – Defamation Act 2005, s 40.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr M F Wheelahan QC with Mr S Mukerjea	Johnson Winter & Slattery
For the Respondent	Dr M J Collins QC with Ms R L Enbom	Corrs Chambers Westgarth

TATE JA
BEACH JA
ASHLEY JA:

On 13 September 2017, the trial judge entered judgment for Ms Wilson against Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (collectively, ‘Bauer’) in the amount of $4,749,920.60.[1] This amount (‘the judgment sum’) was made up of damages for non-economic loss of $650,000, damages for economic loss of $3,917,472 and damages in the nature of interest in the sum of $182,448.61. On 3 October 2017, Bauer paid the judgment sum to the plaintiff.
[1]Wilson v Bauer Media Pty Ltd [2017] VSC 521.

On 14 June 2018, this Court allowed Bauer’s appeal, set aside the judgment obtained at first instance and, in lieu thereof, ordered that there be judgment for Ms Wilson against Bauer in the sum of $600,000.[2] In written submissions filed subsequently, the parties accepted that Ms Wilson was entitled to interest on the sum of $600,000[3] in the amount of $27,165.60. The issues that remain to be determined are:

·Bauer’s entitlement to the repayment of that part of the judgment sum that was set aside on appeal; and
·the parties’ costs (both at first instance, and on appeal).
[2]Bauer Media Pty Ltd v Wilson [No 2] [2018] VSCA 154 (‘Appeal Reasons’).
[3]From the date the writ was filed until the date the judgment sum was paid (see ss 60 and 101 of the Supreme Court Act 1986).

Repayment

Bauer seeks repayment of the sum of $4,122,755, being the amount of the judgment sum ($4,749,920.60) less $627,165.60. Ms Wilson does not dispute that that sum should be repaid. In addition to that sum, Bauer seeks interest at the rate of 2 per cent per annum from 3 October 2017 until the date of this Court’s order for repayment. In support of that claim, Bauer relies upon this Court’s decisions in Meerkin & Apel v Rossett Pty Ltd [No 2][4] and MLC Nominees Pty Ltd v Daffy [No 2].[5]
[4][1999] 2 VR 31.
[5]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSCA 164
Decision Date: 27 June 2018

CaseChat Overview and Summary

The case of Bauer Media Pty Ltd v Wilson (No 3) involved the plaintiff, Bauer Media, and the defendant, Wilson. The dispute centred around defamation claims made by Bauer Media against Wilson, with the matter being heard in the Federal Court of Australia. The plaintiff had originally been awarded damages and interest, but Wilson appealed, leading to a partial repayment of the judgment sum. The appeal court was required to determine the appropriate interest to be applied to the repaid sum, the costs of the proceedings, and the costs of the appeal.

The court addressed several legal issues, including the nature of the interest to be applied to the repaid sum, whether the interest should be restitutionary or compensatory, and the apportionment of costs between the parties. Specifically, the court examined the statutory provisions under the Defamation Act 2005 and the principles governing costs orders in cases where both parties have succeeded and failed on certain issues. The court also considered whether the costs of the trial should be on an indemnity basis and whether the costs should be apportioned due to the mixed outcomes of the appeal.

In reaching its decision, the court held that the interest on the repaid sum should be restitutionary rather than compensatory, reflecting the principle that the defendant should not be enriched at the plaintiff's expense. Regarding costs, the court found that while both parties had succeeded and failed on different issues, the costs of the trial should not be on an indemnity basis. Instead, the court ordered that the costs of the appeal should be apportioned between the parties, reflecting their respective successes and failures. This approach ensured that neither party bore an unfair financial burden due to the mixed outcomes of the litigation.

The final orders included the determination of the appropriate interest on the repaid sum, the apportionment of costs between the parties, and specific directions regarding the payment of costs. The court's decision provided clarity on the principles to be applied in similar future cases involving defamation and mixed outcomes in appeals.

Orders