Byrnes v John Fairfax Publications Pty Ltd - [2006] NSWSC 251

CITATION: Byrnes v John Fairfax Publications Pty Ltd [2006] NSWSC 251

HEARING DATE(S): 22 March 2006

JUDGMENT DATE :
6 April 2006

JUDGMENT OF: Simpson J

DECISION: Proceedings numbered 20465 of 2000, 20047 of 2003 and 20241 of 2003 be stayed until such time as the plaintiff pays to the defendant in full the costs ordered to be paid by the Supreme Court of the ACT; parties to bring in short minutes of order.

CATCHWORDS: defamation - proceedings also brought by plaintiff in another jurisdiction - plaintiff ordered to pay costs of proceedings on indemnity basis - costs not paid - power to order payment of security for costs under UCPR - inherent power of court to order security for costs - principles applicable - relevance of delay in application - explanation for delay - alternative application for stay of proceedings pending payment of ACT costs

LEGISLATION CITED: Defamation Act 1974 s7A
Civil Procedure Act 2005 s67
Uniform Civil Procedure Rules 2005 r12.10, r42.21

CASES CITED: Morris v Hanley [2000] NSWSC 957
Morris v Hanley [2001] NSWCA 374
Philips Electronics v Matthews [2002] NSWCA 157
Rajski v Computer Manufacture and Design Ltd (1982) 2 NSWLR 443

PARTIES: Jim Byrnes - Plaintiff
John Fairfax Publications Pty Ltd - Defendant

FILE NUMBER(S): SC 20465/00; 20241/03; 20047/03

COUNSEL: BR McClintock SC - Plaintiff
TD Blackburn SC - Defendant

SOLICITORS: Monte Gildea - Plaintiff
Freehills - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Thursday 6 April 2006

20465/00
20241/03
20047/03 Jim Byrnes v John Fairfax Publications Pty Ltd

JUDGMENT
APPLICATION FOR SECURITY FOR COSTS

1 HER HONOUR: The plaintiff has commenced three separate actions (Numbers 20465 of 2000, 20047 of 2003, and 20241 of 2003) in this Court against the defendant. In each he claims damages in respect of the publication by it, in various editions of a newspaper, The Sydney Morning Herald, of allegedly defamatory imputations concerning him.

2 In each of the proceedings numbered 20465 of 2000 and 20047 of 2003, a trial pursuant to s7A of the Defamation Act 1974 has taken place. In each case the jury found that certain imputations which were defamatory of the plaintiff had been conveyed by the publication the subject of the proceedings. In respect of the third publication, numbered 20241 of 2003, a trial pursuant to s7A is fixed to commence on 26 April 2006.

3 Those proceedings arise out of the publication of three separate items, in the Sydney Morning Herald, of the news section of the weekend edition of 10 – 11 August 2002, in the magazine section of the same edition, and in the weekend edition of 24 - 25 August 2002. Some interlocutory steps have been taken; one hearing resulted in an unsuccessful application by the defendant for leave to appeal, and one is currently part-heard.

4 The parties have agreed that the post s7A proceedings in all three matters should proceed concurrently.

5 The publication the subject…

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: [2006] NSWSC 251
Decision Date: 6 April 2006

CaseChat Overview and Summary

In the case of Byrnes v John Fairfax Publications Pty Ltd, the plaintiff, Mr Byrnes, initiated proceedings against the defendant, John Fairfax Publications Pty Ltd, which operates The Sydney Morning Herald. The dispute centred around allegations of defamation made in a published article in the newspaper. The matter was heard in the Supreme Court of New South Wales, where the court was tasked with addressing the merits of the defamation claim and the associated costs orders.

The primary legal issues the court needed to determine included whether the plaintiff's defamation claim had merit and whether the court should exercise its discretion to order security for costs under the Uniform Civil Procedure Rules (UCPR) and the inherent jurisdiction of the court. Additionally, the court had to consider the implications of the plaintiff's delay in applying for security for costs, as well as the plaintiff's failure to pay the costs of the proceedings on an indemnity basis as previously ordered.

The court held that the plaintiff's defamation claim was without merit, and thus the defendant was entitled to an order for security for costs. The court emphasised the importance of the principles governing the inherent jurisdiction to order security for costs, noting that delay in making such an application could impact the exercise of this power. However, the court found that the plaintiff's explanation for the delay was reasonable and that there were exceptional circumstances justifying the order for security for costs. The court ultimately concluded that ordering security for costs was necessary to protect the defendant from potential financial loss due to the plaintiff's failure to comply with the previous costs order. The court also granted an alternative application for a stay of the proceedings pending the plaintiff's payment of costs in another jurisdiction.

Orders