Lewincamp v ACP Magazines Limited (No 2)

LEWINCAMP v ACP MAGAZINES LIMITED (NO 2)
[2008] ACTSC 73 (13 AUGUST 2008)

INTEREST ON DAMAGES – damages for defamation – whether 4 per cent appropriate rate – rate not to be applied as if all damage occurred at time of publication

Held: rate of 3 per cent appropriate in the circumstances.

COSTS – claim for indemnity costs – Calderbank letter – allegation of unreasonable conduct prior to Calderbank letter

Held: indemnity costs awarded for period after Calderbank letter, not awarded for period prior to letter.

INTEREST ON COSTS – default position under Court Procedure Rules 2006 (ACT) r 1617 interest payable from date costs assessed – no detailed submissions – parties given liberty to make further submissions

VINDICATION ORDER – order sought under Civil Law (Wrongs) Act 2002 (ACT) s 122 – relevant publication no longer published – not appropriate to make vindication statement part of court orders

Held: no vindication order should be made.

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Lewincamp v ACP Magazines Ltd  [2008] ACTSC 69
MPB (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Osborne v Kelly (1999) 75 SASR 392

Dal Pont, GE, Law of Costs (LexisNexis Butterworths, 2003)

Court Procedure Rules 2006 r 1617

Civil Law (Wrongs) Act 2002 (ACT) s 122

No. SC 578 of 2004

Judge:              Besanko J
Supreme Court of the ACT

Date:               13 August 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 578 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

FRANK LEWINCAMP       

v

ACP MAGAZINES LIMITED

ORDER

Judge:  Besanko J
Date:  13 August 2008
Place:  Adelaide (via videolink with Canberra)

THE COURT ORDERS THAT:

1. The defendant pay to the plaintiff interest on the damages awarded to the plaintiff fixed in the sum of $47,866.44.

1. The defendant pay to the plaintiff his costs of action assessed on the following basis:

   (1)       a party and party basis up to and including 12 June 2007;

   (2)an indemnity basis from 12 June 2007 up to but excluding the application for these orders; and

   (3)a party and party basis in relation to the application for these orders.

1. Liberty to the parties to make further submissions in writing on the question of interest on costs; the plaintiff within 14 days and the defendant within 28 days.

BESANKO J:

1. On 23 July 2008 I entered judgment for the plaintiff against the defendant in this action in the sum of $375,000. I reserved for further consideration questions of interest, vindication of the plaintiff’s reputation and costs.

1. The plaintiff seeks the following orders:

1.   That the defendant pay to the plaintiff interest on the damages awarded to him at a rate of 3 per cent from the date of the publications to the date of judgment being a sum of $47,866.44;

2.   That the defendant pay to the plaintiff his costs of the proceedings, including any applications in the proceedings, on an indemnity basis;