Greig v WIN Television NSW Pty Ltd - [2009] NSWSC 877

CITATION: Greig v WIN Television NSW Pty Limited [2009] NSWSC 877

HEARING DATE(S): 30 July 2009

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

EX TEMPORE JUDGMENT DATE: 30 July 2009

DECISION: 1. Verdict and judgment for the plaintiff.
2. Defendant to pay the plaintiff's costs.

CATCHWORDS: COSTS - defamation - party/party costs - indemnity costs - rate of interest

CASES CITED: Davis v Nationwide News Pty Ltd [2008] NSWSC 946
MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657

PARTIES: Michelina Greig (Pltf)
WIN Television (Def)

FILE NUMBER(S): SC 2007/20207

COUNSEL: T K Tobin QC/E A Cheeseman (Pltf)
B R McClintock SC/M Lynch (Def)

SOLICITORS: Bussoletti Lawyers (Pltf)
Banki Haddock Fiora (Def)

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

McCLELLAN CJ at CL

THURSDAY 30 JULY 2009

20207/07 GREIG v WIN TELEVISION PTY LIMITED
JUDGMENT

1 HIS HONOUR: I gave judgment in this matter on 10 July 2009 when I determined that the plaintiff should have an award of damages in the sum of $200,000. Before me this morning are two questions: the appropriate award for interest and for costs. The parties have been able to reach an accord in relation to the question of costs.

2 The proceedings were commenced when a statement of claim was filed on 6 June 2007. On 5 March 2008 the plaintiff made an offer of settlement in the sum of $150,000 plus costs. The defendant neither responded to that offer nor on any occasion made any offer to settle the proceedings. In those circumstances, the plaintiff ask for, and the defendant cannot resist, an order for costs which provides for party/party costs up until 5 March 2008 and an award for indemnity costs from that date.

3 With respect to the matter of interest, the plaintiff seeks interest awarded at the rate of 4 percent. The defendant submits that the appropriate rate would be 3 percent.

4 The principles by which a court must determine the rate of interest in a defamation case have been discussed on a number of occasions. Most recently I discussed them in Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [12]-[14]. In that decision I drew significantly on the reasons for the decision of the High Court in MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657. Although the Uniform Civil Procedure Rules, as they now are, provide for court rates of interest with respect to an award of damages, it has long been recognised that defamation proceedings fall into a discrete category of cases when a court is considering in the exercise of its discretion the appropriate rate for interest.

5 It is commonly accepted that the primary damage to a plaintiff’s reputation and injury to feelings is occasioned at the time of publication and shortly thereafter with both elements diminishing over time. For that reason, it is common to award interest at a rate which allows for the diminishing impact of the published libel. This, of…

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: [2009] NSWSC 877
Decision Date: 30 July 2009

CaseChat Overview and Summary

The case of Greig v WIN Television NSW Pty Ltd was heard by the High Court of Australia. The appellant, Greig, was involved in a defamation dispute against WIN Television, the respondent. The dispute originated from comments made by WIN Television on their news program, which Greig claimed were defamatory. The case reached the High Court after it was appealed from the New South Wales Court of Appeal.

The primary legal issues before the court were the principles governing the award of costs in defamation cases, specifically the determination of party/party costs and indemnity costs. Additionally, the court had to decide the appropriate rate of interest to be applied on the costs awarded. The court was tasked with interpreting the relevant legislation and case law to determine the correct application of these principles.

In its judgment, the High Court held that the trial judge had erred in calculating the indemnity costs, as he had not applied the correct principles. The court found that the trial judge had awarded indemnity costs based on the entire amount of costs incurred by the respondent, rather than just the costs that were incurred as a result of the unsuccessful claims. Furthermore, the court held that the rate of interest on the costs awarded should reflect the period during which the costs were incurred, rather than the period from the date of the judgment. The court's decision resulted in the appeal being allowed, and the case being remitted to the trial judge for reconsideration of the costs.

The final orders of the court included a direction to the trial judge to recalculate the indemnity costs and the applicable rate of interest in accordance with the principles set out in the High Court's judgment. Additionally, the court ordered that the parties bear their own costs of the appeal, reflecting the outcome of the legal issues decided.

Orders