CITATION: JONES v. SUTTON [No. 2] [2005] NSWCA 203
FILE NUMBER(S): 41206/02 40290/03
HEARING DATE(S): 25/02/2005
JUDGMENT DATE: 16/06/2005
PARTIES: Darren Gregor Jones (Appellant) Ruth Sutton (Respondent)
JUDGMENT OF: Beazley JA Santow JA Stein AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 4496/01
LOWER COURT JUDICIAL OFFICER: Gibson DCJ
COUNSEL: A. Leopold (Appellant) B.M. McClintock SC/A.T.S. Dawson (Respondent)
SOLICITORS: Allens Arthur Robinson (Appellant) Freehills (Respondent)
CATCHWORDS: COSTS - pre-trial offer of compromise - specific principal offer and costs offer made - Pt 19A District Court Rules - consequences of failing to accept compromise offer - Pt 39A District Court Rules - court's discretion as to costs - "an exceptional case" - "avoidance of substantial injustice" APPEAL - indemnity costs - court's discretion as to costs - s.76 Supreme Court Act - relevance of parties' conduct of proceedings - s.48A Defamation Act
DECISION: 1. Rescind Order 7 made 26 November 2004.
Vacate the costs orders made by the trial judge. 4. Order that the respondent pay the appellant's costs of the hearing conducted before the jury pursuant to the provisions of s.7(3) of the Defamation Act 1974 (NSW) (the jury trial), limited to a hearing of 4 days together with the reasonable costs of preparation for the jury trial. 5. Order that each party otherwise pay his and her own costs of the proceedings at first instance. 6. Order that each party pay his and her own costs of the appeal.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 41206/02 CA 40290/03
BEAZLEY JA SANTOW JA STEIN AJA
16 June 2005
JONES v. SUTTON (No. 2)
Headnote
The appellant brought proceedings in the District Court claiming the respondent, a fellow member of Warringah Council, had defamed him. The trial judge held that the defence under s.13 of the Defamation Act 1974 (NSW) – that the appellant was not likely to suffer harm in the circumstances in which the defamatory matter was published – had been made out and a verdict was entered for the respondent. The appellant successfully appealed to this Court (Beazley and Santow JJA, Stein AJA). Damages in the sum of $5000.00 were awarded, there being no contest to the trial judge’s provisional assessment of damages in that amount.
The appellant, pursuant to Pt 39A r. 25(4) of the District Court Rules, sought special orders as to the costs both of the trial and of the appeal on the basis that he had made an offer to compromise proceedings prior to the trial proceedings in accordance with Pt 19A of the District Court Rules. The offer, as is permitted by Pt 19A r.2A was divided into a principal offer of $1000 and a costs offer in the sum of $88,500.
The respondent in turn sought an order that 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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AGLC
Jones v Sutton (No 2) [2005] NSWCA 203
Case
[2005] NSWCA 203
Decision Date
CaseChat Overview and Summary
The parties to this proceeding were Jones (the appellant) and Sutton (the respondent). The dispute concerned an appeal against an order made by the District Court regarding costs. The appeal was heard in the Supreme Court of New South Wales.
The primary legal issues before the Supreme Court were whether the District Court had erred in its exercise of discretion regarding costs, specifically in relation to an offer of compromise made pursuant to Part 19A of the District Court Rules, and whether the circumstances warranted the award of indemnity costs. The court also considered the application of section 48A of the Defamation Act in relation to the conduct of the proceedings.
The Supreme Court found that the District Court had erred in its assessment of the offer of compromise and its subsequent costs order. The court noted that the offer of compromise, which included both a principal sum and a costs offer, was a significant factor to be considered under Part 19A of the District Court Rules. The court determined that the District Court had failed to adequately consider the consequences of the offer not being accepted, particularly in light of the appellant's subsequent success in the defamation proceedings. The court also considered the conduct of the parties, referencing section 76 of the Supreme Court Act and section 48A of the Defamation Act, in its assessment of whether an award of indemnity costs was appropriate. The court concluded that the District Court's decision to refuse indemnity costs was not justified.
The Supreme Court ordered that the previous order of the District Court be rescinded and that the respondent pay the appellant's costs of the appeal on an indemnity basis.