Cornes v The Ten Group Pty Ltd (No 2) - [2012] SASCFC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CORNES v THE TEN GROUP PTY LTD & ORS (NO 2)
[2012] SASCFC 106
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)
19 September 2012
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS
The appellants appealed to the Full Court against a finding of a trial Judge that words broadcast were defamatory and an order for indemnity costs pursuant to s 38 of the Defamation Act 2005 (SA). The appeal was dismissed leaving the question of the costs of the appeal to be determined. The respondent sought costs on an indemnity basis pursuant to s 38 of the Defamation Act 2005 (SA).
Held:
Kourakis CJ, Gray and Blue JJ:
1. Section 38 of the Defamation Act 2005 (SA) is confined to defamation proceedings at first instance, leaving the Court with its general discretion as to costs in appellate proceedings. Section 38 therefore does not apply to the present proceedings.
2. Even if s 38 does apply to the present proceedings, the interests of justice require an order not be made that the appellants pay the respondent’s costs on an indemnity basis.
3. The appellants are to pay the respondent’s costs of appeal on a party/party basis.
Defamation Act 2005 (SA) Sections 38, 38(2)(a) ; Supreme Court Act 1935 (SA) Section 40(1); Defamation Act 1974 (NSW) Section 48A; Supreme Court Civil Rules 2006 (SA) Rules 263, 264, 264(2), 264(5)(b), referred to.
Australian Securities and Investments Commission v West [2008] SASC 111; (2008) 100 SASR 496; Channel Seven Sydney Pty Ltd v Mahommed (No 2) [2011] NSWCA 6; Davis v Nationwide News Pty Ltd [2008] NSWSC 946; Flower and Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134; Haddon v Forsyth (No 2) [2011] NSWSC 693; Pascoe Ltd v Lucas [1999] SASC 519; (1999) SASR 246; Pope v Pope [2001] SASC 26; Sheahan v Northern Australia Land & Agency Co Ltd [1995] SASC 5363, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"defamation proceedings" "proceedings"

CORNES v THE TEN GROUP PTY LTD & ORS (NO 2)
[2012] SASCFC 106
Full Court: Kourakis CJ, Gray and Blue JJ
THE COURT:

On 24 August 2012, this Court dismissed an appeal by the Ten Group and Mr Molloy against a judgment of a Judge of this Court in favour of Mrs Cornes for defamation.[1]   The trial Judge had entered judgment for $85,000 damages together with interest of $8,000 and ordered that Network Ten and Mr Molloy pay Mrs Cornes’ costs on an indemnity basis.[2]
[1]    Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99.
[2]    Cornes v The Ten Group Pty Ltd & Ors [2011] SASC 104; Cornes v The Ten Group Pty Ltd & Ors (No. 2) [2011] SASC 141.
Mrs Cornes applies for costs of the appeal on an indemnity basis. Channel Ten and…

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: [2012] SASCFC 106
Decision Date: 19 September 2012

CaseChat Overview and Summary

Cornes and The Ten Group Pty Ltd (No 2) concerned a defamation proceeding heard in the Supreme Court of South Australia. The dispute arose from allegations of defamation made by Mr Cornes against The Ten Group.

The central legal issue before the Full Court was whether the primary judge had erred in their assessment of costs, specifically in relation to the application of the indemnity principle and the principles governing the award of costs in defamation proceedings. The court was required to consider whether the costs awarded were proportionate to the issues in dispute and the conduct of the parties.

The Full Court found that the primary judge had made errors in their cost orders. It was held that the indemnity principle, which generally dictates that a successful party should recover their costs, had not been correctly applied. The court reasoned that the primary judge had failed to adequately consider the overall conduct of the parties and the proportionality of the costs awarded in light of the limited success achieved by Mr Cornes. The principles of indemnity costs and ordinary costs were discussed, with the court emphasizing that indemnity costs are an exception and require specific justification.

Consequently, the Full Court set aside the cost orders made by the primary judge and remitted the matter back to the primary judge for redetermination of the costs.

Orders