Cotter v John Fairfax Publications Pty Ltd

[2003] NSWSC 705

CITATION:	Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 705
HEARING DATE(S):	31 July 2003
JUDGMENT DATE:	31 July 2003
JUDGMENT OF:	Simpson J
DECISION:	Costs to which the plaintiff is entitled are not reduced by reference to Supreme Court Rules Pt 52A r33; award of costs encompasses retention of two counsel; defendant to pay the costs incurred by the plaintiff in relation to the notice of motion filed on 23 July 2003; defendant to pay the costs of 31 July 2003; plaintiff to bring in short minutes of order
CATCHWORDS:	defamation - damages awarded - reduction of costs by reference to Part 52A Rule 33
LEGISLATION CITED:	Defamation Act 1974, s7A, s22 Supreme Court Rules Part 52A Rule 33
CASES CITED:	John Fairfax & Sons Ltd v Palmer (1978) 8 NSWLR 297
PARTIES :	Barry Cotter - Plaintiff John Fairfax Publications Pty Ltd - Defendant
FILE NUMBER(S):	SC 20360/97
COUNSEL:	T Molomby SC - Plaintiff TD Blackburn - Defendant
SOLICITORS:	Joseph G Capogreco & Associates - Plaintiff Freehills - Defendant

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

SIMPSON J

Thursday 31 July 2003

20360/97 Barry COTTER v JOHN FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT

1 HER HONOUR: Part 52A r33 provides that a plaintiff who receives an award of damages of not more than $150,000 receives only half the costs incurred unless a contrary order is made.

2 The plaintiff has been awarded damages of $100,000 and will be awarded interest which will bring that sum to approximately $115,000, but seeks that the court make a contrary order.

3 The considerations relevant to the making of such an order are set out in the judgment of Kirby P in John Fairfax & Sons Ltd v Palmer (1987) 8 NSWLR 297. His Honour listed the considerations as (i) the complexity of the questions of law and fact involved, (ii) the extent to which the verdict represents vindication of the plaintiff and his reputation, and (iii) the existence in this court of a special defamation list for the management of defamation cases.

4 At the time these proceedings were commenced the District Court did not have, as it now does, a special defamation list and indeed, when this matter went to trial pursuant to s7A of the Defamation Act 1974, the District Court did not have such a list. Accordingly, that last consideration favours the plaintiff.

5 The award of damages obviously operates as a vindication but that could equally have been achieved by proceeding in the District Court. I do not think that favours the plaintiff, although it does not greatly assist the defendant.

6 The real issue in this case concerns the complexity of the questions involved. In this regard it is apposite to note that until only a few days before the trial commenced the defendant proposed to rely on s22 of the Defamation Act as a defence, as well as the defences on which it ultimately went to trial, those being substantial truth and contextual truth.

7 There were in my view, as among other things the length of the judgment will indicate, extensive questions of fact and quite complex transactions to be examined.

8 The defendant sought to establish the truth of its imputations by reference to conduct of the plaintiff in his role as Mayor of Marrickville. The extent of the documentary material and oral evidence itself is indicative of some complexity. The defence of contextual truth is also a matter of some difficulty.

9 It was certainly appropriate for the plaintiff to commence the proceedings in this court and although it may not be given a great deal of weight, in my opinion the relatively high public profile of the plaintiff as Mayor of a municipality was another factor which weighed in his favour in the commencement of proceedings in this court.

10 I am satisfied that the plaintiff has established a basis for his claim and I will order that the costs to which he is entitled not be reduced by reference to Pt 52A r33.

11 The plaintiff also seeks an order that the award of costs encompass the retention of two counsel. The defendant did not concede that this was appropriate but has advanced no argument to the contrary and I propose to make such an order.

12 I will order the defendant to pay the costs incurred by the plaintiff in relation to a notice of motion filed on 23 July 2003.

13 The defendant is to pay the costs of today. I direct the plaintiff to bring in short minutes of order reflecting all of the orders I have indicated I will make, including those in the judgment.

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Last Modified: 08/11/2003