Cornes v The Ten Group Pty Ltd (No 2) - [2011] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CORNES v THE TEN GROUP PTY LTD AND ORS (NO. 2)
[2011] SASC 141
Judgment of The Honourable Justice Peek
31 August 2011
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
INTEREST - RATE OF INTEREST AND COMPOUND INTEREST
Application by plaintiff for costs of action on an indemnity basis and for interest on judgment sum at the rate of 4% per annum.
Whether defendants unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff – s 38(2)(a) Defamation Act 2005 (SA) – whether plaintiff should pay the first defendant’s costs of the proceedings – whether the usual rate of interest of 4% per annum should be reduced to 2%.
Held: the second to fifth defendants are to pay the plaintiff’s costs of the action on an indemnity basis – defendants unreasonably failed to make a settlement offer to the plaintiff under first limb of s 38(2)(a) – defendant’s only monetary offer to pay the plaintiff the all inclusive sum of $35,000 with a confidentiality clause was unreasonable in light of the damages awarded at trial – plaintiff’s failure to plead a true innuendo case as at time of defendants’ monetary offer was not fatal to the plaintiff’s claim for costs on an indemnity basis – defendants also failed to make a reasonable settlement offer in light of the plaintiff’s offer of 20 May 2009 – defendants did not unreasonably fail to agree to any of the three settlement offers proposed by the plaintiff under the second limb of s 38(2)(a) – no order as to costs of the first defendant as all defendants were part of the same economic entity and the work done by the first defendant was adopted and made use of by the other defendants – it is appropriate to somewhat reduce the rate and period of interest and award an amount of $8,000 for interest.
Defamation Act 2005 (SA) ss 38, 38(2), 38(2)(a), referred to.
Davis v Nationwide News Pty Ltd [2008] NSWSC 946; Manefield v Child Care NSW (No 2) [2011] NSWSC 104, applied.
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, considered.

CORNES v THE TEN GROUP PTY LTD AND ORS (NO. 2)
[2011] SASC 141

PEEK J: This is an application by the plaintiff for interest and costs on an indemnity basis.
On 5 July 2011 I published my reasons for judgment for the plaintiff in her defamation claim.[1] The plaintiff now applies for an order seeking her costs of the proceedings on an indemnity basis and interest on the judgment sum at the rate of 4% per annum.
[1] Cornes v The Ten Group Pty Ltd [2011] SASC 104.
Background
On 29 June 2008, the second, third and fourth defendants broadcast the programme Before the Game which included a live interview with panel members and a guest, Stuart Dew. During the interview, the fifth defendant alleged that the plaintiff had had sexual intercourse with Dew in a timeframe such that a substantial number of viewers would have known that the plaintiff was then married to Graham Cornes.
The plaintiff commenced her action in the Supreme Court on 15 January 2009. The case was set down for trial for November 2010, but due to a late application by the plaintiff for the defendant to answer written questions, the trial was vacated. The trial commenced on 18 April 2011 and occupied three sitting days.
In its final form, the statement of claim alleged that the words spoken by the fifth defendant conveyed that the plaintiff committed adultery, that she was unfaithful to her husband and that she was a promiscuous woman. I held that the words complained of were not capable of conveying the third meaning. As to the first two meanings, I found that there was no relevant difference between them and that the ordinary reasonable viewer would have understood the fifth defendant’s words to mean that Dew had had sexual intercourse with the plaintiff. I therefore found that, in relation to those viewers who were aware that the plaintiff was married to Graham Cornes at the relevant time, the meaning of adultery as complained of by the plaintiff was made out.
Indemnity costs in defamation proceedings
Pursuant to s 38 Defamation Act 2005 (SA) (“the Act”), the Court must award indemnity costs against an unsuccessful defendant where that defendant has unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff unless the interests of justice require otherwise. Section 38 is as follows:
38—Costs in defamation proceedings
(1)     In awarding costs in defamation proceedings, the court may have regard to—
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b)any other matters that the court considers relevant.
(2)     Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3)     In this section—
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.
The plaintiff contends that the defendants unreasonably failed to make a settlement offer (under the first limb of s 38(2)(a)), or in the alternative, they unreasonably failed to agree to a settlement offer proposed by the plaintiff (under the second limb of s 38(2)(a)).
Settlement offers between the parties
On 24 July 2008 the plaintiff sent a notice of concerns to the defendants in which she sought inter alia a sum of money in lieu of damages. The defendants responded by letter dated 11 August 2008 rejecting the plaintiff’s assertions of defamation, but offering to make amends pursuant to s 13 of the Act. The terms of the offer included the broadcast of an on-air correction and apology, an undertaking not to re-publish the statements made by the fifth defendant and an offer pursuant to s 15(f) of the Act to pay the expenses reasonably incurred by the plaintiff to the date of the offer and such costs incurred by the plaintiff in considering the offer. The letter contained no offer of monetary compensation in lieu of damages.
By letter dated 28 August 2008, the plaintiff rejected the defendants’ offer to make amends. The plaintiff indicated that she would accept the sum of $120,000 in lieu of damages plus legal costs and also an apology.
By letter dated 9 September 2008, the defendants rejected the plaintiff’s proposal and restated their previous offer in their letter of 11 August 2008 to make amends, the only difference being the proposed terms of the apology. Again, no monetary compensation was offered. By letter dated 19 September 2008, the plaintiff rejected the defendants’ offer and subsequently initiated proceedings.
Following a settlement conference between the parties on 12 May 2009, the defendants wrote to the plaintiff on 18 May 2009 offering to pay the plaintiff the all inclusive sum of $35,000, comprising $20,000 in lieu of damages and $15,000 by way of costs, subject to the condition that the terms of the offer were to remain confidential between the parties. The offer was to remain open for 14 days only.
As this was the only monetary offer that the defendants ever made, its reasonableness will be critical. I set out the relevant proposal:
Proposal
Our client is prepared to make a final settlement offer:
1.Our client will provide a letter to your client undertaking that it will not republish the comment by Mr Molloy, whether on-air or in any other form.
2.Our client has already broadcast an on-air correction and apology.
3.Our client will pay the all-inclusive sum of $35,000, comprising $20,000 in lieu of damages and $15,000 by way of costs.
4.Your client may refer to the fact of settlement being reached but the terms of this offer are to remain confidential between the parties. To the extent that your client seeks “public vindication”, this was provided by the correction and apology broadcast in September 2008.
The acceptance of these settlement terms would constitute a full and final resolution of the claims which are the subject of the proceedings and any potential claims against any other person or entity arising from publication of the comment by Mick Molloy. On acceptance of these terms and receipt of the letter of undertaking and settlement payments, your client would discontinue her proceedings on the basis that there is no order as to costs.
In all of the circumstances, we believe this to be a very generous offer. Given your indication that your client is genuine about reaching a settlement, we look forward to your confirmation that this matter can be resolved on the basis proposed.
As this offer is made for commercial reasons, there is no justification for any increase. Commercially, it is more sensible for our client to proceed to trial than increase its offer.
This letter is sent in accordance with the principles in Calderbank v Calderbank. In the event the offer contained in this letter is not accepted, our client reserves its rights to refer to any rely upon this letter on the question of costs.
Naturally, our client will also rely upon the previous steps it has taken and offers it has made in this matter to the full extent available.
This offer is open for acceptance for a period of 14 days from the date of this letter.
The plaintiff responded to the defendants’ letter two days later on 20 May 2009 when she rejected the defendants’ offer, but offered to accept in full and final settlement of her claim the sum of $100,000 plus her costs to be agreed or taxed. The relevant parts of this letter are as follows:
We acknowledge receipt of your letter dated 18 May 2009.
The first point to make is that the defamatory matter was not, as you assert, a ‘comment’, but a defamatory assertion of fact. Next, the plain fact is that your clients have no defence, and have pleaded no substantive defence. Third, it is certainly not the view of Senior Counsel or ourselves that no defamatory imputations are conveyed. Fourth, we would be happy to enter into ‘meaningful negotiations’, but no realistic offer has been made by your clients. Fifth, we are content to amend the proceedings and recommence in the Supreme Court of Victoria.
Finally, your ‘proposal’ is rejected. It does not conform to Calderbank, in any event.
We are instructed that our client will accept, in full and final settlement of her claim against your client, the sum of $100,000 together with her costs to be agreed or taxed.
(Emphasis added)
The defendants did not accept this offer or make a counter offer.
On 25 March 2011 the plaintiff filed an offer in Court to accept the amount of $150,000 by way of damages plus costs to be adjudicated by the Court.
Did the defendants unreasonably fail to make a settlement offer?
In determining whether the defendants should pay the plaintiff’s costs of proceedings on an indemnity basis, the first question to consider under s 38 of the Act is whether the defendants unreasonably failed to make a settlement offer to the plaintiff.
The term “settlement offer” is defined in s 38(3) of the Act to mean a reasonable offer at the time it is made. As the defendants did make offers – the first two non-monetary offers being in substantially the same terms and a final offer which included the monetary amount of $35,000 – the question is therefore whether any of the defendants’ offers was reasonable at the time it was made.
In my view, as at 11 August 2008, it should have been obvious to the defendants that the plaintiff had been defamed and would recover damages if the matter proceeded to trial and the defendants’ two non-monetary offers of 11 August and 9 September 2008 were plainly not reasonable.
The plaintiff’s submissions as to the defendants’ offer of 18 May 2009
It therefore remains to consider the defendants’ offer of 18 May 2009 for the total sum of $35,000 in lieu of damages being $20,000 in lieu of damages and $15,000 for costs. The plaintiff submitted that at the time of that offer, the defendants were aware that she had been seriously defamed and that it should have been obvious to the defendants that the published imputations had substantially damaged the plaintiff’s reputation and caused her considerable anguish. The plaintiff relied upon a passage of McClellan CJ in the case of Davis v Nationwide News Pty Ltd,[2] which dealt with the equivalent provision in the Defamation Act 2005 (NSW). His Honour there said:
[30]The resolution of this issue depends upon the application of s 40(3) of the Act which defines “settlement offer” to include an offer to make amends “that was a reasonable offer at the time it was made.” In my opinion it should have been apparent to the defendant at the time of the publications that Ms Davis had been defamed. At the very least a reasonable offer at that time would have included an offer of an apology. It should also have been obvious to the defendant that not only had the published imputations damaged Ms Davis’ reputation but they had also caused her significant anguish. The defendant should have appreciated that Ms Davis would recover a sum for her damage.
[2] [2008] NSWSC 946.
Here, the plaintiff submitted that the quantum of the defendants’ offer of $20,000 for damages was so low compared with the damages of $85,000 ultimately awarded that it could not be characterised as a reasonable offer at the time it was made.
The plaintiff further submitted that it is of particular importance that it was a condition of the offer that its terms must remain confidential since this condition removed the ability of the plaintiff to point publicly to the settlement amount in vindication of her reputation. The plaintiff accordingly submitted that when $20,000 with a confidentiality condition attached is compared with a trial award of $85,000 without a confidentiality condition attached, it can be seen that the true disparity is greater than just $65,000.
The defendants’ submissions as to the defendants’ offer of 18 May 2009
The defendants submitted that while the Court was entitled to have regard to all of the circumstances, including the result ultimately achieved by the plaintiff, the Court should not adopt an ex post facto approach; a defendant’s offer will not be unreasonable merely because a plaintiff later achieves a better result by proceeding to trial. They further submitted that it was not the purpose of s 38 to penalise a defendant for making a commercial assessment of its risks in potential proceedings, nor to discourage a defendant from pursuing a reasonably arguable defence or contending for a reasonably arguable view of the facts or law.
The defendants submitted that the confidentiality clause in the defendants’ third offer did not make that offer unreasonable and submitted that the apology in September 2008 afforded the plaintiff some degree of public vindication. They also submitted that the effect of the apology was to increase the real worth of the offer of $20,000.
Further, the defendants submitted that the fact that the plaintiff had not as at 18 May 2009 pleaded a true innuendo (that is, that a substantial number of viewers knew that the plaintiff was married at the relevant time) meant that the defendants’ offer of $20,000 was reasonable at that time, in light of this “fatal flaw” in the plaintiff’s pleadings.
The defendants’ offer of 18 May 2009 was not reasonable
In my view, the defendants’ offer of 18 May 2009 cannot be characterised as being reasonable and therefore is not a “settlement offer” within the meaning of s 38 of the Act.
I consider that the defendants ought to have realised the substantial strength of the plaintiff’s case at the time of making that offer. While I eschew ex post facto reasoning, it is permissible to have some regard to the ultimate award of $85,000 since the facts and the essential evidence that brought about that award should have been obvious to the defendants as at 18 May 2009. The difference between the offer amount of $20,000 and the judgment amount is marked and not to be explained, or at least sufficiently explained, by differences in the facts existent at the time of the making of the offer and the time of trial.
I also accept the plaintiff’s submission that when $20,000 with a confidentiality condition attached is compared with a trial award of $85,000 without a confidentiality condition attached, it can be seen that the true disparity is greater than just $65,000.
As to the defendants’ submission that there was a fundamental flaw in the plaintiff’s case (the failure as at 18 May 2009 to plead a true innuendo) which justified an offer as low as $20,000, I at least agree that that was a significant flaw. However, the defendants have the difficulty that the greater the flaw, the greater the likelihood that the defect would be remedied prior to trial. In other words, the very fact that the omission was obvious meant that as at 18 May 2009 the defendants knew, or ought to have known, that it was highly likely to be remedied before trial. Accordingly, the then existence of the flaw did not justify such a low offer since it was highly unlikely that the “flaw” would remain overlooked; and once discovered, there was no possibility of successfully resisting an application to amend because the defendants had no plausible claim of prejudice resulting from such an amendment.
The defendants also submitted that the effect of its apology in September 2008 was that the “package” of the apology together with the $20,000 offer was somehow worth more than $20,000 (with the inference being that the comparison figure of $85,000 remained the same). I have difficulty in following this submission. As I noted in my judgment, the award of $85,000 specifically took into account the tendency of the defendants’ apology to give the plaintiff some public vindication. In other words, if the apology had not occurred, the amount of damages awarded would certainly have been higher in order to achieve commensurate vindication. This general relationship was obvious to the defendants’ advisers. In other words, in so far as the published apology plus $20,000 is worth more than $20,000, so too is the published apology plus $85,000 worth more than $85,000; and accordingly the disparity remains the same.
In my view, for all of the above reasons, the defendants’ offer of 18 May 2009 was not a reasonable offer. There being no other monetary offer, I consider that the plaintiff is entitled to her costs of proceedings on an indemnity basis. I have considered whether the interests of justice require otherwise and I find that they do not.
Refusal of the defendants to make a reasonable settlement offer following the plaintiff’s letter of 20 May 2009

In the alternative to the above, I consider that the refusal of the defendants to make a reasonable offer following the plaintiff’s letter of 20 May 2009 also leads to an award of indemnity costs to the plaintiff.
In the letter of 20 May 2009, the plaintiff indicated that she was prepared to negotiate (“we would be happy to enter into ‘meaningful negotiations’”). This was against the background that she had recently reduced her negotiating position from $120,000 in her letter of 28 August 2008 down to $110,000 at the settlement conference on 12 May 2009.
In Manefield v Child Care NSW (No 2)[3] Kirby J considered a plaintiff’s offer which in much the same way as in the present case signalled that a lesser figure was achievable. His Honour stated:
[50]… A modest offer was made by the plaintiff to avoid litigation ($40,000.00 damages, $5000.00 costs plus an apology). The final paragraph signalled that a lower figure may be agreed (“if you would like to negotiate a resolution...”). It was a sensible and reasonable letter which the defendant chose to ignore.
…
[61]… Litigation, by its nature, is hazardous. Things may occur unexpectedly, such that a good case is lost or a doubtful case, won. The hazards of litigation are perhaps greater in defamation than in most other areas. But quite apart from that, litigation is expensive, even for those who ultimately win. With these things in mind, as a matter of enlightened self interest, it was important for the parties to consider compromise and commercial reality.
…
[63]… Whilst the offer of the plaintiff in the concerns notice was modest and reasonable, it was, by its terms an invitation to treat, such that I would not find it unreasonable for the defendant to refuse to accept it. But a counter offer was called for as well as earnest endeavours to reach a compromise agreement. …
[3] [2011] NSWSC 104.
In other words, his Honour considered that since the offer itself made clear that the amount referred to was not the “bottom line” and was really an invitation to treat, it was not unreasonable for the defendants to decline to accept that offer which itself indicated that they could probably do better; however, it was unreasonable in all the circumstances to simply ignore the invitation to treat and not enter into negotiations.
I consider that the same analysis applies in the present case.
Further, it must be remembered that the plaintiff’s offer of 20 May 2009 was in fact more favourable to the defendants than what has eventuated at trial. The offer of $100,000 was inclusive of interest. Although the total of $85,000 plus interest will be less than $100,000, there is no doubt that the vast increase in legal costs (even on a party/party basis) between 20 May 2009 and the end of the trial will mean that the defendants will be greatly worse off in paying the judgment sum plus the costs of the plaintiff, and their own costs, than if they had paid the plaintiff the amount of $100,000 as sought on 20 May 2009 plus costs as at that time. Again, this is not ex post facto reasoning – these matters would have been quite obvious to the defendants’ very experienced solicitors as at 20 May 2009.
In all of the circumstances, I consider that, in light of the plaintiff’s indication in her 20 May 2009 letter that she was prepared to negotiate (“we would be happy to enter into ‘meaningful negotiations’”), the defendants were unreasonable both in failing to negotiate and in failing to make a subsequent reasonable monetary offer in lieu of damages at a figure somewhat less than $100,000 but well in excess of their previous offer of $20,000.
Accordingly, I would also find on this alternative basis that the plaintiff should be awarded her costs on an indemnity basis. Again, I consider that the interests of justice do not require otherwise.
Did the defendants unreasonably fail to agree to a settlement offer proposed by the plaintiff?
Although it is not strictly necessary to do so in light of the above, I will briefly consider whether the defendants unreasonably failed to agree to any of the plaintiff’s offers (the second limb of s 38(2)(a)).
The plaintiff made three offers which I list here again for convenience:
1Her offer of 28 August 2008, to the first defendant, seeking $120,000 in lieu of damages plus costs and an apology;
2Her offer of 20 May 2009, to the first defendant, of $100,000 in lieu of damages plus costs; and
3Her filed offer of 25 March 2011, to all of the defendants, of $150,000 in damages plus costs to be determined by the Court.
I consider that the defendants were not unreasonable in refusing offers 1 and 3.
As to offer 2, the defendants first submitted that that offer cannot be said to be “a reasonable offer”. They submitted that the amount of $100,000 did not reflect any reasonable discounting of an amount that the plaintiff might reasonably have expected to obtain by way of damages and that as there was no element of compromise, the offer cannot be said to be “a reasonable offer”.
However, in my view, since the amount of $100,000 is inclusive of interest and therefore was only a little in excess of the amount of $85,000 plus interest awarded at trial, from the point of view of the plaintiff, her offer of $100,000 was reasonable and is to be considered a “settlement offer” for the purposes of s 38 of the Act. It is to be noted that s 38 of the Act does not require that a plaintiff do better in the proceedings than the offer that he or she has made. As McClellan CJ at CL said in Davis v Nationwide News Pty Ltd:
[27]Section 40(2) obliges parties to defamation proceedings to take a reasonable approach to negotiations for the settlement of those proceedings. A party who unreasonably fails to make or accept a settlement offer may be ordered to pay costs on an indemnity basis. The amount of the offer is relevant for the purpose of assessing the reasonableness of a party’s conduct. The section contemplates that an order for costs on an indemnity basis may be made even if a party making an offer does not do better in the proceedings than the offer which he or she has made.
(Emphasis added)
The more difficult question is as to whether the defendants were unreasonable in refusing to accept the offer.
In this regard, I repeat the observation I have made above in the different context of the first limb of s 38(2)(a) of the Act: the plaintiff’s offer of 20 May 2009 was in fact more favourable to the defendants than what has eventuated at trial in that whereas the total of $85,000 plus interest will be less than $100,000, the vast increase in legal costs (even on a party/party basis) between 20 May 2009 and the end of the trial will mean that the defendants will be far worse off in paying the judgment sum plus the costs of the plaintiff and their own costs than if they had paid the plaintiff the amount of $100,000 as sought on 20 May 2009 plus costs as at that time.
However, for reasons I have also referred to in the context of the first limb of s 38(2)(a), I do not consider that the defendants were unreasonable not to accept the offer for the simple reason that the offer itself made clear that the amount referred to was not the “bottom line” and was really an invitation to treat. Accordingly, it was not unreasonable for the defendants to decline to accept that offer which itself indicated that they could probably do better. However, it was unreasonable in all the circumstances to simply ignore the invitation to treat and not enter into negotiations; but, as stated above, this is a matter relevant to the first limb of s 38(2)(a) rather than to the second limb.
Costs of the first defendant
The first defendant submitted that as it was not liable for the publication of the defamatory material, the plaintiff ought to pay its costs of the proceedings. It submitted that the plaintiff had not identified any basis upon which it should be deprived of its costs, and that it is entitled to be indemnified in respect of the expenses it has incurred by reason of the plaintiff wrongly bringing an action against it.
However, the plain fact of the matter is that the first to fifth defendants have at all times shared the same legal representation and have had the same interests in the litigation. They are clearly part of the same economic entity. It is quite artificial to claim that the first defendant incurred costs which the second to fifth defendants would not have incurred had the “correct” entity been identified by the plaintiff from the outset.
What is particularly noticeable in the present case is that the plaintiff corresponded and negotiated with the solicitors for the first defendant for quite some time on the basis that the first defendant was authorised to conduct such negotiations. Indeed, it was the first defendant who made various offers of settlement to the plaintiff including the critical offer of 18 May 2009 and, of course, the other defendants now vehemently insist upon the benefit of the making of such an offer, presumably on their behalf, so as to advance the argument considered above that it was a reasonable offer which the plaintiff should not have refused
However, it is now apparently submitted that: although the same legal representatives have at all times acted for all of the defendants, doing the same work in the name of the first defendant as they would in any event have done in the name of the other defendants; and although the other defendants now seek to take advantage of that very work and particularly the making of offers of settlement; and although the plaintiff was successful in her claim against the other defendants represented by exactly the same lawyers; the plaintiff should now pay the costs of the first defendant because that is the “wrong” defendant!
I certainly recognise the “chutzpah” involved in making the submission, but, alas, I must decline to accept it. I make no order as to the costs of the first defendant.
Interest
The plaintiff also sought interest on the judgment sum of $85,000 and both sides began their submissions from the starting point that the usual rate is 4% per annum.
The defendants submitted that the rate should be reduced by half to 2% per annum, as the plaintiff’s evidence at trial was that the hurt remained over a considerable period of time. The principle that interest can be reduced in defamation cases to reflect the continuing injury was explained in John Fairfax & Sons Ltd v Kelly[4] where McHugh JA said:[5]
The correct approach in theory would seem to be that, since the plaintiff was entitled to damages immediately upon publication, the proper inquiry is first to determine to what extent the award was increased by reason of continuing injury. In strict theory the interest, in respect of this additional sum, would need to take account of the fact that the injury was spread over a period after publication.
[4] (1987) 8 NSWLR 131.
[5] Ibid 143.
The plaintiff submitted that any reduction should be much less because although her hurt and personal distress continued over the period of three years, the damage to her reputation occurred primarily around the date of publication and shortly thereafter; the tendency for damage to be concentrated at the time of publication is much greater in the case of a television broadcast than in the case of a book which may be taken to continue to circulate and generate harm over a longer continuous period.
The defendants also submitted that I should reduce the period over which interest is calculated because of various claimed delays by the plaintiff and particularly the plaintiff’s late application to issue pre-trial written questions which delayed the commencement of the trial.[6]
[6] Relying upon Conroy’s Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd (2007) 97 SASR 14, 53 [238] (Perry J).
I note that in Amalgamated Television Services Pty Ltd v Marsden[7] and in Davis v Nationwide News Pty Ltd[8] the remarks of McHugh JA have been acknowledged but it was emphasised that rather than applying a purely arithmetical approach to the calculation of interest it is necessary always to consider what is “fair and proper” in the circumstances of the particular case. In all the circumstances, I will make an appropriate reduction in both the rate and period of interest. I fix the amount of interest in the sum of $8,000.
[7] [2002] NSWCA 419.
[8] [2008] NSWSC 946.
Conclusions and orders
In these circumstances I consider that the following orders should be made:
1There be judgment for the plaintiff against the second, third, fourth and fifth defendants in the amount of $93,000 inclusive of the amount of $8,000 for interest.
2      There be judgment for the first defendant against the plaintiff.
3      There be no order as to costs regarding the first defendant.
4Subject to any specific orders for costs relating to interlocutory applications in the action, the second, third, fourth and fifth defendants do pay the plaintiff’s costs of the action on an indemnity basis.
5      I certify the trial as fit for Senior Counsel.