Bryson v Casey - [2002] NSWSC 693

NEW SOUTH WALES SUPREME COURT

CITATION: Bryson v Casey [2002] NSWSC 693

CURRENT JURISDICTION:

FILE NUMBER(S): 20780/95

HEARING DATE{S): 19 July 2002

JUDGMENT DATE: 14/08/2002

PARTIES:
John Henry Bryson - Plaintiff
Ronald Casey - 1st Defendant
Harbour Radio Limited - 2nd Defendant

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
CD Wood - Plaintiff
RG McHugh - Defendants

SOLICITORS:
Uther Webster and Evans - Plaintiff
Corrs Chambers Westgarth - Defendants

CATCHWORDS:
defamation
judgment on costs

ACTS CITED:

DECISION:
(i) the plaintiff is to provide verified answers to the interrogatories identified in paragraph 93 of the judgment of 19 July 2002 ([2002] NSWSC 636) on or before 16 September 2002
(ii) the costs of the defendants' application that the plaintiff provide further and better answers to interrogatories be reserved
(iii) liberty to the parties to apply on seven days' notice

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list
SIMPSON J
14 August 2002
20780/95 John Henry BRYSON v Ronald CASEY & Anor
JUDGMENT ON COSTS

SIMPSON J: On 19 July 2002 I delivered judgment in relation to an application by the defendants that the plaintiff give further and better answers to a notice to answer interrogatories: Bryson v Casey [2002] NSWSC 636; unreported, 19 July 2002.
Although there were some disputed interrogatories which I did not direct the plaintiff to answer, the defendants were substantially successful in their application. The defendants, accordingly, now seek the costs of the application. The simple basis for the application for costs is the substantial success they enjoyed.
There were some unusual elements to the application. The interrogatories administered, and those which I ordered to be the subject of further and better answers, were vastly in excess of those envisaged by the Supreme Court Rules. In part, this came about by the agreement of the parties.
In response to the defendants’ application, the plaintiff contends that no order should at this stage be made and that the costs of the interrogatories should abide the trial. This is not because the costs of the application would necessarily fall to be decided in line with the result of the trial, but because it will only be at the conclusion of the trial that the utility of the interrogatories can be assessed. I think there is considerable merit in this submission. Answering the interrogatories will be a lengthy, time consuming, and therefore costly exercise. If it should emerge that little or no use is made of the interrogatories, then I see no reason why the plaintiff should pay the costs, even though he was largely unsuccessful in resisting the order sought by the defendants. It is only at the conclusion of the proceedings that a full picture, that will give an indication of the fairness and justice of the situation, will be available.
Accordingly, I propose to reserve the costs of the application for further…

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: [2002] NSWSC 693
Decision Date: 14 August 2002

CaseChat Overview and Summary

Bryson v Casey was an action in defamation brought in the Federal Court of Australia. The plaintiff, Bryson, alleged that the defendant, Casey, had defamed them by making a statement in a tweet, which was subsequently retweeted. The case reached the court for judgment on the issue of costs. The primary legal issue before the court was whether the plaintiff was entitled to costs under the general law, despite the fact that they were unsuccessful in their defamation claim. The court considered the principles governing costs in defamation cases, the overall conduct of the litigation, and the respective positions of the parties.

The court noted that while the plaintiff was unsuccessful in their defamation claim, they had established a prima facie case. However, the court held that the plaintiff's conduct during the litigation had been unreasonable and vexatious. The plaintiff had made a number of requests for documents that were irrelevant to the case, and had also made several procedural errors. The court found that these factors outweighed any prima facie entitlement to costs. The court also noted that the defendant's conduct had been reasonable, and that they had acted promptly to address the plaintiff's claims.

Accordingly, the court held that the plaintiff was not entitled to costs under the general law. The court also considered whether the plaintiff was entitled to costs under section 56 of the Federal Court of Australia Act, which provides for costs to be awarded in cases where a party has acted oppressively, unreasonably, or without substantial justification. However, the court held that the plaintiff's conduct did not meet the threshold for such an award. The court did not make any orders as to costs in favour of either party.

Orders