Cross v Queensland Newspapers Pty Ltd (No 2) - [2008] NSWCA 120

New South Wales

Court of Appeal

CITATION: Cross v Queensland Newspapers Pty Ltd (No 2) [2008] NSWCA 120

HEARING DATE(S): On the papers

JUDGMENT DATE:
30 May 2008

JUDGMENT OF: Mason P; Beazley JA; Basten JA

DECISION: The orders on the appeal are:
1. Grant an extension of time within which to file a Notice of Appeal with Appointment up to and including 9 March 2007;
2. Set aside Orders 2, 3 and 4 made by this Court on 7 May 2008;
3. Appeal allowed;
4. Set aside Orders 1 and 2 made by the trial judge on 6 December 2006;
5. Judgment for the respondent (defendant) in respect of the appellant’s (plaintiff’s) claim for defamation arising from the respondent’s publication dated 1 July 2003;
6. Remit the appellant’s claim for defamation arising from the respondent’s publication dated 20 June 2003 to the Common Law Division for the determination of the respondent’s defences, other than that of truth, and for the determination of damages, if any;
7. Order that the costs of the first trial, including the costs of the claim arising from the respondent’s publication dated 1 July 2003 be determined by the trial judge at the remitted hearing;
8. Order that the respondent pay the appellant’s costs of the appeal and, if otherwise eligible, have a certificate under the Suitor’s Fund Act 1951.
The Court makes the following orders on the Notice of Motion filed 18 May 2008:
1. The Notice of Motion is allowed in part and dismissed in part;
2. Orders 2 and 3 as sought in the Notice of Motion are made as amended in the Orders made above;
3. Orders 4 and 5 sought in the Notice of Motion are refused;
4. The respondent is to pay the appellant’s costs of the Notice of Motion.

CATCHWORDS: PRACTICE and PROCEDURE - Judgments and orders - amending orders- slip rule – orders amended to properly reflect judgment - COSTS – Civil Procedure Act 2005 – differential costs orders – where party is successful on either a discrete cause of action or particular issue only – judicial discretion - COSTS – orders for costs of trial where Court of Appeal remits proceedings to trial judge

LEGISLATION CITED: Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, rr 36.17, 42.1, 42.7

CASES CITED: Craftsman Homes Australia Pty Ltd v Channel Nine Pty Ltd (2006) NSWSC 1297
Lewis v Nortex Pty Ltd (In liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (No 2) [2002] NSWSC 72
Western Australia Cricket Association Inc (1986) ATPR 40-748

PARTIES: Ronald Cross (Appellant)
Queensland Newspapers Pty Ltd (Respondent)

FILE NUMBER(S): CA 40811/06

COUNSEL: GO Reynolds SC; CA Evatt; JE Rawlings (Appellant)
S Wheelhouse SC; M Richardson (Respondent)

SOLICITORS: Licardy Harris & Co (Appellant)
Thynne & Macartney (Brisbane) (Respondent)
Kemp Strang (Sydney) (Respondent's agent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20191/03

LOWER…

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: [2008] NSWCA 120
Decision Date: 30 May 2008

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by the plaintiff, Cross, against Queensland Newspapers Pty Ltd. The dispute concerned claims of defamation arising from newspaper publications. The court was required to determine whether to grant an extension of time for the appeal, whether to set aside previous orders of the Court of Appeal and the trial judge, and how to resolve the defamation claims, including the assessment of costs.

The legal issues before the court included the application of the slip rule to amend orders to reflect the court's judgment, the principles governing differential costs orders under the *Civil Procedure Act 2005* (NSW) where a party is successful on a discrete cause of action or issue, and the appropriate orders for costs of a trial where proceedings are remitted to the trial judge. The court also had to consider the plaintiff's entitlement to costs of the appeal.

The court allowed the appeal in part, setting aside certain orders of both the Court of Appeal and the trial judge. Judgment was entered for the defendant in respect of one defamation claim, while another claim was remitted to the Common Law Division for further determination of defences and damages. The court ordered that the costs of the first trial be determined by the trial judge at the remitted hearing. The defendant was ordered to pay the plaintiff's costs of the appeal and the costs of a related notice of motion.

Orders

Orders of the court

The orders on the appeal are: 1. Grant an extension of time within which to file a Notice of Appeal with Appointment up to and including 9 March 2007; 2. Set aside Orders 2, 3 and 4 made by this Court on 7 May 2008; 3. Appeal allowed; 4. Set aside Orders 1 and 2 made by the trial judge on 6 December 2006; 5. Judgment for the respondent (defendant) in respect of the appellant's (plaintiff's) claim for defamation arising from the respondent's publication dated 1 July 2003; 6. Remit the appellant's claim for defamation arising from the respondent's publication dated 20 June 2003 to the Common Law Division for the determination of the respondent's defences, other than that of truth, and for the determination of damages, if any; 7. Order that the costs of the first trial, including the costs of the claim arising from the respondent's publication dated 1 July 2003 be determined by the trial judge at the remitted hearing; 8. Order that the respondent pay the appellant's costs of the appeal and, if otherwise eligible, have a certificate under the Suitor's Fund Act 1951. The Court makes the following orders on the Notice of Motion filed 18 May 2008: 1. The Notice of Motion is allowed in part and dismissed in part; 2. Orders 2 and 3 as sought in the Notice of Motion are made as amended in the Orders made above; 3. Orders 4 and 5 sought in the Notice of Motion are refused; 4. The respondent is to pay the appellant's costs of the Notice of Motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cross v Queensland Newspapers Pty Ltd (No 2) [2008] NSWCA 120
HEARING DATE(S):	On the papers
JUDGMENT DATE:	30 May 2008
JUDGMENT OF:	Mason P; Beazley JA; Basten JA
DECISION:	The orders on the appeal are: 1. Grant an extension of time within which to file a Notice of Appeal with Appointment up to and including 9 March 2007; 2. Set aside Orders 2, 3 and 4 made by this Court on 7 May 2008; 3. Appeal allowed; 4. Set aside Orders 1 and 2 made by the trial judge on 6 December 2006; 5. Judgment for the respondent (defendant) in respect of the appellant’s (plaintiff’s) claim for defamation arising from the respondent’s publication dated 1 July 2003; 6. Remit the appellant’s claim for defamation arising from the respondent’s publication dated 20 June 2003 to the Common Law Division for the determination of the respondent’s defences, other than that of truth, and for the determination of damages, if any; 7. Order that the costs of the first trial, including the costs of the claim arising from the respondent’s publication dated 1 July 2003 be determined by the trial judge at the remitted hearing; 8. Order that the respondent pay the appellant’s costs of the appeal and, if otherwise eligible, have a certificate under the Suitor’s Fund Act 1951. The Court makes the following orders on the Notice of Motion filed 18 May 2008: 1. The Notice of Motion is allowed in part and dismissed in part; 2. Orders 2 and 3 as sought in the Notice of Motion are made as amended in the Orders made above; 3. Orders 4 and 5 sought in the Notice of Motion are refused; 4. The respondent is to pay the appellant’s costs of the Notice of Motion.
CATCHWORDS:	PRACTICE and PROCEDURE - Judgments and orders - amending orders- slip rule – orders amended to properly reflect judgment - COSTS – Civil Procedure Act 2005 – differential costs orders – where party is successful on either a discrete cause of action or particular issue only – judicial discretion - COSTS – orders for costs of trial where Court of Appeal remits proceedings to trial judge
LEGISLATION CITED:	Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, rr 36.17, 42.1, 42.7
CASES CITED:	Craftsman Homes Australia Pty Ltd v Channel Nine Pty Ltd (2006) NSWSC 1297 Lewis v Nortex Pty Ltd (In liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480 LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (No 2) [2002] NSWSC 72 Western Australia Cricket Association Inc (1986) ATPR 40-748
PARTIES:	Ronald Cross (Appellant) Queensland Newspapers Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40811/06
COUNSEL:	GO Reynolds SC; CA Evatt; JE Rawlings (Appellant) S Wheelhouse SC; M Richardson (Respondent)
SOLICITORS:	Licardy Harris & Co (Appellant) Thynne & Macartney (Brisbane) (Respondent) Kemp Strang (Sydney) (Respondent's agent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20191/03
LOWER…