Machado v Underwood (No 2)

Case [2016] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MACHADO & ANOR v UNDERWOOD & ANOR (No 2)

[2016] SASCFC 123

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)

24 November 2016

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ACTION

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS

This judgment deals with issues of interest, costs and final orders as a consequence of the appellants’ (defendants at trial) partial success with respect to their appeal to the Full Court in Machado & Anor v Underwood & Anor [2016] SASCFC 65 from the decision of a Magistrate in defamation proceedings. The appeal was partially successful, notwithstanding that all of the many grounds of appeal relating to liability were dismissed, because the Magistrate’s damages award was reduced on appeal. As a consequence, the Magistrate’s order for pre-judgment interest had to be adjusted. Further, the costs of the trial had to be revisited together with the costs of the appeal.

Held: (Kourakis CJ and Nicholson J; Gray J dissenting)

1.  Judgment for the first respondent against the appellants in the amount of $25,500 inclusive of interest to the date of judgment, 3 June 2016.

2.  The appellants pay the first respondent’s costs of the action, including the trial, on an indemnity basis.

3.  The appellants pay the second respondent’s costs of the action, including the trial, calculated according to the applicable scale of the Third Schedule of the Magistrates Court Rules.

4.  The appellants pay 85 per cent of the first respondent’s costs of the appeal on a party and party basis.

5.  The appellants pay the second respondent’s costs of the appeal on a party and party basis.

6.  There be no order as to the costs of the first respondent’s application for security for the costs of the appeal.

Whistleblowers Protection Act 1993 (SA); Defamation Act 2005 (SA) s 20, s 28, s 38; Magistrates Court Act 1991 (SA) s 19, s35, s 37; District Court Civil Rules r 187, r 263; Magistrates Court (Civil) Rules 2013 r 58, r 106; Supreme Court Act 1935 s 40; Magistrates Court (Civil) Rules 1992 r 59, r 124, referred to.
Machado & Anor v Underwood & Anor [2016] SASCFC 65; Calderbank v Calderbank [1975] 3 All ER 333; Rayner v Pethick [2006] SASC 70; Gwinnett v Day (No 2) [2012] SASC 61; Dimitropoulos v Bridgestone Australia Ltd (1995) 180 LSJS 29; Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212; Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450; Cornes v The Ten Group Pty Ltd & Ors (No 2) [2012] SASCFC 106, considered.

MACHADO & ANOR v UNDERWOOD & ANOR (No 2)
[2016] SASCFC 123

Full Court:  Kourakis CJ, Gray and Nicholson…

Continue reading Machado v Underwood (No 2)

Sign in free to access the full text

Details
AGLC
Machado v Underwood (No 2) [2016] SASCFC 123
Case
[2016] SASCFC 123
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Supreme Court of South Australia by the appellants against a judgment of the Magistrates Court. The appeal related to a defamation action brought by the first respondent against the appellants.

The primary legal issues before the Full Court were the appropriate orders for costs of the appeal, given the appellants' partial success in reducing the damages awarded at trial, and the calculation of pre-judgment and post-judgment interest on the damages awarded to the first respondent. The court also considered the costs of the action at trial and the costs of an application for security for costs of the appeal.

The Full Court, by majority, ordered that the appellants pay 85 per cent of the first respondent’s costs of the appeal on a party and party basis, and that the appellants pay the second respondent’s costs of the appeal on a party and party basis. The court also ordered that there be no order as to the costs of the first respondent’s application for security for the costs of the appeal. Regarding interest, the court ordered pre-judgment interest for the period from the date of publication until the date of the Full Court's judgment, awarding a lump sum of $3,000 in lieu of a precise calculation. Post-judgment interest was to run at the prescribed rate. The appellants were ordered to pay the first respondent’s costs of the action, including the trial, on an indemnity basis.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KOURAKIS CJ
Bearing in mind the appellants’ success in having the damages reduced, we would order that the appellants are to pay 85 per cent of the first respondent’s costs of the appeal, if not agreed, adjudicated on a party and party basis.Pre-judgment interest Pre-judgment interest is payable for the period from the date of publication (21 December 2011) until the date of the Full Court’s judgment (3 June 2016) approximately four and a half years. The appellants have made submissions in support of an interest rate of 2 per cent resulting in a total amount of approximately $2,000. The first respondent has provided submissions in support of an interest rate of 4 per cent resulting in a total amount of approximately $4,000. Using a broad (albeit small) axe we would order a lump sum of $3,000 in lieu of a precise interest calculation. Post-judgment interest will run at the rate prescribed in accordance with section 35 of the Magistrates Court Act and rule 124 of the Magistrates Court (Civil) Rules 1992, 5 per cent.Orders We would make the following orders:1.judgment for the first respondent against the appellants in the amount of $25,500 inclusive of interest to the date of judgment, 3 June 2016;2.the appellants pay the first respondent’s costs of the action, including the trial, on an indemnity basis;3.the appellants pay the second respondent’s costs of the action, including the trial, calculated according to the applicable scale of the Third Schedule of the Magistrates Court Rules;4.the appellants pay 85 per cent of the first respondent’s costs of the appeal on a party and party basis;5.the appellants pay the second respondent’s costs of the appeal on a party and party basis; and6.there be no order as to the costs of the first respondent’s application for security for the costs of the appeal. GRAY J: Having regard to my view that the appeal should be allowed, I would order the appellants’ costs of the appeal be paid by the respondents.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

Full text does not contain this section.