Liquor Marketing Group v Sadler

[2000] NSWCA 207

CITATION:	LIQUOR MARKETING GROUP & ANOR v SADLER [2000] NSWCA 207
FILE NUMBER(S):	CA 40795/98
HEARING DATE(S):	In Chambers
JUDGMENT DATE:	9 August 2000
PARTIES :	Liquor Marketing Group Limited - First Appellant Ernie Begg - Second Appellant Gary Sadler - Respondent
JUDGMENT OF:	Sheller JA; Giles JA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	281/98
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	TK Tobin QC/M G Lynch - Appellants B R McClintock SC/R C Titterton - Respondent
SOLICITORS:	Freehill Hollingdale & Page - Appellants Wall & Associates - Respondent
CATCHWORDS:	COSTS
LEGISLATION CITED:	N/A
CASES CITED:	N/A
DECISION:	1. Respondent to pay the appellants' costs of the appeal, and to have a certificate under the Suitors' Fund Act if qualified; 2. Costs of the trial before Goldring DCJ be as ordered by the Judge hearing the new trial as to damages; 3. Set aside the order of Levine J that the defendants pay two-thirds of the plaintiff's costs of the application before him, and in lieu thereof order that the plaintiff pay the defendants' costs of that application

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40795/98
DC 281/98

SHELLER JA
GILES JA

Wednesday, 9 August 2000

LIQUOR MARKETING GROUP PTY LTD & ANOR v SADLER

JUDGMENT
(COSTS)

1    THE COURT : Judgment in this appeal was given on 6 July 2000. Costs were reserved, and directions were given for filing written submissions. Davies AJA will not be available for some months. The parties have agreed that the question of costs should be disposed of by us, and that we should decide the question on the written submissions. We have the anticipatory concurrence of Davies AJA to that course.

2    The appellants failed in their challenges to imputation 6(a), to Goldring DCJ’s conclusions in relation to qualified privilege, and to some aspects of the conduct of the trial. They succeeded in their challenge to imputation 5(a), with the result that a new trial as to damages is necessary. Notwithstanding the failed challenges, the appellants overturned the judgment. We do not think that the appellants acted unreasonably in declining to take on appeal the ruling prior to the trial that the publication was capable of carrying imputation 5(a), or that the issues in the appeal warrant a differential order as to costs. In our opinion the costs of the appeal should follow the event.

3    The costs of the trial before Goldring DCJ should be left for the Judge conducting the new trial as to damages. The proper disposal of those costs is likely to be affected by what happens in and the outcome of the new trial.

4    The appeal included appeal against the ruling of Levine J prior to the trial that the publication was capable of carrying imputation 5(a). Our orders on 6 July 2000 did not set aside the order for costs then made. So far as it was ordered that the plaintiff pay any costs occasioned by the amendment which produced imputation 6(a), there is no occasion to displace it. So far as the order was that the defendants pay two-thirds of the plaintiff’s costs of the application, if the ruling had been adverse to imputation 5(a) it would have been appropriate to order the plaintiff to pay the defendants’ costs of the application.

5    We make the following orders as to costs -

(1) Respondent to pay the appellants’ costs of the appeal, and have a certificate under the Suitors’ Fund Act if qualified;
(2) Costs of the trial before Goldring DCJ be as ordered by the Judge hearing the new trial as to damages;
(3) Set aside the order of Levine J that the defendants pay two-thirds of the plaintiff’s costs of the application before him, and in lieu thereof order that the plaintiff pay the defendants’ costs of that application.

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