Coates v Harbour Radio Pty Ltd - [2010] NSWSC 796

NEW SOUTH WALES SUPREME COURT

CITATION:
Coates v Harbour Radio Pty Ltd & Anor [2010] NSWSC 796

JURISDICTION:

FILE NUMBER(S):
2004/20443

HEARING DATE(S):
29 March 2010

JUDGMENT DATE:
20 July 2010

PARTIES:
John Dowling Coates (Plaintiff)
Harbour Radio Pty Ltd (1st Defendant)
Alan Jones (2nd Defendant)

JUDGMENT OF:
Fullerton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
B McClintock SC (Plaintiff)
ATS Dawson (Defendants)

SOLICITORS:
Kennedys (Plaintiff)
Banki Haddock Fiora (Defendants)

CATCHWORDS:
COSTS
whether relief sought is appropriately brought by an interlocutory process
indemnity principle

LEGISLATION CITED:
Associations Incorporation Act 1981 (Vic)
Civil Procedure Act 2005
Legal Profession Act 2004

CASES CITED:
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Angor Pty Ltd v Ilich Motor Company Pty Ltd (1992) 37 FCR 65
Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114
Blair v Curran (1939) 62 CLR 464
Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292
Coshott v Woollahra Municipal Council [2008] NSWCA 176
Dyktynski v BHP Titanium Minerals PTY Ltd [2004] NSWCA 154; 60 NSWLR 203
Grundmann v Georgeson [2000] QCA 394
Halliday v High Performance Pty Ltd (in liq) [1993] HCA 13
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Wentworth v Rogers (2006) 66 NSWLR 474

TEXTS CITED:

DECISION:
1. The defendants’ notice of motion is dismissed.
2. The defendants are to pay the plaintiff’s costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
FULLERTON J
20 JULY 2010
2004/20443 COATES v HARBOUR RADIO PTY LTD &
ANOR

JUDGMENT

HER HONOUR: By notice of motion dated 22 February 2010 the defendants seek relief in connection with an order made and entered on 12 September 2008 obliging them to pay the plaintiff’s costs consequent upon him succeeding in a defamation action that was heard and determined by Adams J on 4 April 2008 (Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292). The relief sought by motion includes a declaration that the indemnity principle applies to the costs order, an order permanently restraining the plaintiff from enforcing the costs order and an order that the proceedings on the costs assessment commenced in January 2010 be permanently stayed.
In written submissions filed in advance of the hearing Mr McClintock SC argued that the application is misconceived and should be dismissed on a number of alternate bases.
The first that the application is effectively an attack on a final order, in this case a final order entered by consent, and is therefore res judicata. While he accepted that a challenge to a final order may be brought by way of an appeal, or by exercise of the power granted by r 36.15 of the Uniform Civil Procedure Rules (UCPR) where it can be shown that the order was made “irregularly, illegally or against good faith” (none of which is alleged here), it was submitted that the relief sought here…

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: [2010] NSWSC 796
Decision Date: 20 July 2010

CaseChat Overview and Summary

The case of Coates v Harbour Radio Pty Ltd involved a dispute over the interpretation of a costs order and the entitlement to interest on those costs. The plaintiff, Coates, sought interest on costs from the defendants under section 101(4) of the Civil Procedure Act. The defendants, Harbour Radio Pty Ltd, had previously consented to pay the plaintiff’s costs on a party-party basis up to a certain date and on an indemnity basis thereafter. The central legal issue was whether the relief sought by Coates was appropriately brought by an interlocutory process and whether the indemnity principle applied to the costs order.

The court examined whether Coates was entitled to interest on the costs that were paid by the Australian Olympic Committee (AOC) on his behalf. Coates argued that the defendants should pay interest on the costs from the date of the order until payment. The defendants contended that the resolution should be read restrictively, limiting it to awards of damages or settlements involving damages, and excluding costs. They argued that Coates was only entitled to enforce the costs order to the extent of the amount he was obligated to repay the AOC.

The court found that the resolution was not ambiguous and that the defendants were indeed bound to pay the costs on an indemnity basis. However, the court held that the relief sought for interest on costs was not appropriately brought by an interlocutory process. The court also considered the indemnity principle, concluding that it did not apply to the interest on costs claim. The court found that Coates was not entitled to interest on the costs paid by the AOC.

In conclusion, the court dismissed the plaintiff's motion for interest on the costs. The defendants were not required to pay interest on the costs paid by the AOC.

Orders

Orders of the court

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Background

Background to the litigation

Mr Dawson of counsel submitted that this construction of the resolution was not reasonably open because the term “any award or settlement” should be read restrictively limiting “any award or settlement” to any award of damages, or any settlement where damages are agreed, but exclusive of costs. He further submitted that if I am persuaded of the construction advanced by Mr McClintock then the plaintiff is only entitled to enforce the costs order to the extent of the amount of money he remains obligated to repay the AOC. Background to the current proceedings The plaintiff’s damages claim was in respect of a number of imputations which were conveyed when the second defendant broadcast his views concerning certain events that occurred during, and immediately following, the rowing final of the Women's Eights in the 2004 Olympic Games. At the time of the broadcast the plaintiff was the President of the Australian Olympic Committee (“the AOC”) and a member of the Executive of the Australian Olympic Committee Inc (“AOC Inc”), an incorporated association under the Associations Incorporation Act 1981 (Vic). At the hearing before Adams J in 2008 the plaintiff was asked by the defendants’ senior counsel whether he was personally litigating the claim for damages. He said that the AOC was “standing behind him”. Cross-examining counsel did not seek to clarify precisely what the plaintiff meant by that answer. That is whether the AOC supported his action as a matter of principle or whether they were supporting him financially by funding the litigation. For my part I see little latent ambiguity in the response. In any event, the relationship between the plaintiff and the AOC Inc was not the subject of any further evidence in the primary proceedings and was not raised when the question of costs was adjourned before Adams J to allow the parties to prepare submissions. On 12 September 2008 the defendants consented to an order that they pay the plaintiff’s costs on a party - party basis up to 30 November 2006, and thereafter on an indemnity basis. The order was entered that day. On 29 May 2009, before a bill of costs was prepared by the plaintiff to enable costs to be assessed, the plaintiff filed a notice of motion seeking an order that the defendants pay interest on costs pursuant to s 101(4) of the Civil Procedure Act. The proceedings on the motion were heard before me over a number of sitting days in August 2009. Prior to the hearing the defendants sought and obtained confirmation from the plaintiff’s solicitors that he did not personally pay the legal costs associated with the primary proceedings either during the currency of those proceedings or at any time thereafter. Instead the tax invoices, rendered by his solicitors between June 2005 to the date of judgment and thereafter to 30 March 2009, were raised in the name of the AOC Inc and paid by that entity. As I noted in the judgment at [8] the defendants must have believed that to be the case, even if they did not know it as a fact, given that in June 2008 the plaintiff directed that the judgment sum in the amount of $360,000, and judgment interest in the amount of $28,563.29, be paid directly to the AOC Inc. In the proceedings Mr Mercer, the Director of Corporate Services for the AOC Inc, deposed to the fact that these payments were made in partial discharge of the plaintiff’s obligation under a private arrangement he had with the AOC Inc to repay the costs of the litigation in the event that an award was made in his favour, and to do so as a first priority before taking the benefit of any award.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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