Hodge v TCN Channel 9 (No 2) - [2006] NSWSC 1272

CITATION: Hodge v TCN Channel Nine & Anor No 2 - Interest and Costs [2006] NSWSC 1272

HEARING DATE(S): 16 November 2006

JUDGMENT DATE :
28 November 2006

JUDGMENT OF: Smart AJ at 1

DECISION: See paras 80-81

CATCHWORDS: Rates of Interest for non-economic loss in defamation cases where vindication required and most of damage to hurt feelings etc occurred about time of publication - overall interest rates fixed rather than splitting up interest calculations - Costs - Requirements of offer of compromise and construction of offer - plaintiff succeeds on two out of three imputations - third imputation justified on particular basis - defendants succeeding on some issues - Overall costs order made rather than orders for a series of orders leading to expensive costs assessment - impermissible conditions attached to "Calderbank" offer and so disregarded.

LEGISLATION CITED: Federal Court of Australia Act 1976
Supreme Court Rules
Supreme Court Act 1970
UCP Act & Rules

CASES CITED: Assaf v Skalkoss unrep NSW 5/10/03
Australian Consolidated Press v Driscoll (1988) Aust Torts Reports 80-175 p67,645
Calderbank v Calderbank 1976 Fam 93
Carson v John Fairfax & Sons Ltd unrep NSWSC 6/5/94
Erskine v John Fairfax Group Pty Ltd unrep NSWSC 6/5/98
Hughes v Western Australia Cricket Association & Ors 1986 ATPR 40-748
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
McMullen v TCN Channel Nine Pty Ltd unrep NSWSC 938
MPB(SA) Limited v Gogic (1991) 171 CLR 657
Obeid v John Fairfax Publications unrep 2006 NSWSC 1059
Perkins v NSW Aboriginal Land Council unrep 15/8/97
Thompson v Australian Capital Television Pty Ltd & Ors unrep ATSC 4 1998
Vilo v John Fairfax & Sons Ltd unrep NSWSC 1206 15/12/00

PARTIES: Gregory Hodge v TCN Channel Nine Pty Limited & Nine Network Australia Pty Limited

FILE NUMBER(S): SC 20276/03

COUNSEL: (P) S Littlemore QC & Ms S Chrysanthou
(D) B McClintock SC & Mr M Richardson

SOLICITORS: (P) Blake Dawson Waldron
(D) Gilbert & Tobin

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

SMART AJ

Tuesday, 28 November 2006
20276/03:

Gregory HODGE v TCN CHANNEL NINE PTY LIMITED and NINE NETWORK AUSTRALIA PTY LIMITED

JUDGMENT – Interest and Costs

1. Further to my judgment of 18 September 2006 and the amendment of 20 September 2006 as to Special Damages, the parties have argued the questions of interest and cists.

Interest
Special Damages

2. In the amendment of 20 September 2006 to my judgment I assessed the special damages at $21,000, being part of the moneys paid by Mr Hodge to Wilkinson Media, in an endeavour by Mr Hodge to mitigate his damage. The parties were agreed that interest in this sum should be calculated at the rate of 9 per cent from the date of publication. As at 28 November 2006 such interest amounts to $5,913.37 .

General Damages

3. The plaintiff submitted that he should receive interest on the general damages awarded at the rate of 4 per cent from the…

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: [2006] NSWSC 1272
Decision Date: 28 November 2006

CaseChat Overview and Summary

The case of Hodge v TCN Channel 9 (No 2) involved a defamation case in which the plaintiff sought damages for non-economic loss, including hurt feelings, and sought vindication. The defendants, TCN Channel 9, contested the plaintiff's claims, resulting in a complex legal dispute. The case was heard in the Federal Court of Australia, where the plaintiff argued for a higher rate of interest on damages due to the nature of the defamation and the requirement for vindication, while the defendants contested the rate and argued for a lower overall interest calculation.

The central legal issues in the case revolved around the appropriate rate of interest to be applied to non-economic loss damages in defamation cases where vindication is required, and the majority of the damage to the plaintiff's feelings occurred around the time of publication. Additionally, the court had to determine the proper construction of an offer of compromise and the requirements for such an offer, as well as the implications of impermissible conditions attached to a "Calderbank" offer. The court also needed to decide on the costs of the litigation, considering the overall outcome rather than a series of orders that could lead to an expensive costs assessment.

In its decision, the court held that a fixed overall interest rate was appropriate for non-economic loss damages in defamation cases where vindication is required, rather than splitting up interest calculations. The court found that the plaintiff succeeded on two out of three imputations, with the third imputation justified on specific grounds. The defendants, however, were successful on some issues. The court also determined that an overall costs order was appropriate, rather than a series of orders that could result in a costly assessment, and disregarded the impermissible conditions attached to the "Calderbank" offer. The court's reasoning was based on a careful consideration of the evidence and the applicable legal principles.

The final orders of the court included a determination of the appropriate rate of interest for non-economic loss damages, a finding on the imputations, and a comprehensive costs order. The court's decision provided clarity on the application of interest rates in defamation cases and the proper handling of offers of compromise and costs assessments.

Orders