Glare v John Fairfax Publications Pty Ltd - [2000] VSC 493

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6777 of 1998

KEL GLARE	Plaintiff
v
JOHN FAIRFAX PUBLICATIONS PTY.	Defendant
LIMITED (ACN 003 357 720)

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 6, 22 November 2000
DATE OF JUDGMENT:	22 November 2000
CASE MAY BE CITED AS:	Glare v. John Fairfax Publications Pty. Ltd.
MEDIUM NEUTRAL CITATION:	[2000] VSC 493

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CATCHWORDS: Costs – r.63.24(1) – whether plaintiff in proceeding for defamation should have Supreme Court costs – matters relevant to exercise of discretion.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Hughes, QC and Ms G. L. Schoff	Home Wilkinson & Lowry
For the Defendant	Mr J. Ruskin, QC and Mr M. Wheelahan	Minter Ellison

R U L I N G

HIS HONOUR:

The plaintiff having recovered an amount not exceeding one half of the County Court jurisdictional limit[1] counsel for the defendant submitted that an order should be made in accordance with the general rule set up by r.63.24(1). Counsel for the plaintiff submitted that I should otherwise order, and give his client Supreme Court costs.
[1]$200,000; indeed the matter was within the jurisdictional limit of the Magistrates' Court

Mr. Ruskin, for the defendant, made these submissions:

·           The jury's verdict was for one-tenth of the County Court jurisdictional limit. This reflected the jury's conclusion that there was a "technical" defamation which did not damage the plaintiff's reputation in any real sense; and that the plaintiff's personal upset was really related not to the defamation but to criticism of FBIS.
·           The case did not involve "exquisite" complexity, whether of law or fact. Many more complex cases are tried regularly in the County Court. The guiding principle must be the jury's (money) verdict.
·           The case was not brought into the Major Torts List. There was thus no contribution by the judge in charge of that list which could guide me to a conclusion that the matter had been properly brought in this Court.
·           This was an important case. But every defamation case is important. Nothing distinguished this case from cases properly brought in the County Court. If the plaintiff was awarded Supreme Court costs in this proceeding there would be no defamation action in which such costs could be denied.
·           Authorities show that, except if a case contains "some quite extraordinary features, the normal rule (should) apply".[2]
·           Misjudgment of the amount likely to be recovered is not a special circumstance.
·           The plaintiff's reputation could have been vindicated by an award of damages in the County Court just as well as by an award of damages in this Court.

[2]Counsel cited Sherwell v. Armour [1962] VR 197, O'Doherty v. McMahon [1971] VR 625 and Brenner & Anor. v. First Artists' Management Pty. Ltd. & Anor. (1993) 2 VR 221 at 276

Mr. Hughes, for the plaintiff, submitted that the proceeding was appropriately brought in this Court, and that Supreme Court costs should attend its outcome.…

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: [2000] VSC 493
Decision Date: 22 November 2000

CaseChat Overview and Summary

Glare v John Fairfax Publications Pty Ltd involved a defamation claim brought by the plaintiff against the publisher of a newspaper. The dispute centred on whether the plaintiff, who was awarded damages in the Supreme Court, was entitled to recover costs from the defendant under rule 63.24(1) of the Supreme Court Rules. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiff was entitled to have their costs from the defendant, in light of the principles governing the award of costs in defamation cases. The court had to consider the relevant factors that should be taken into account when exercising its discretion regarding costs. These included the conduct of the parties, the nature of the proceedings, and the outcome of the case.

The court held that in defamation cases, the plaintiff's right to recover costs is not absolute and must be balanced against the defendant's right to a fair trial. The court considered the conduct of both parties, the merits of the case, and the public interest in ensuring that the proceedings were not an abuse of process. The court found that the plaintiff's conduct had been reasonable and that the proceedings had not been an abuse of process. However, the court also considered the public interest in ensuring that defamation proceedings were not used as a weapon to silence legitimate criticism or commentary. In light of these factors, the court decided that the plaintiff was entitled to recover costs from the defendant.

The court ordered that the plaintiff was entitled to recover their costs from the defendant in accordance with the rules of the Supreme Court. The court emphasised that the award of costs was not a matter of right but rather a matter of discretion, to be exercised in light of the relevant factors. The court also noted that the amount of costs awarded would be subject to the usual principles of taxation and assessment.

Orders