Mather v Smith (No 2) - [2014] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION:

Mather v Smith (No 2) [2014] QCA 66

PARTIES:

GLENDA MARY MATHER
(applicant)
v
JOHN THOMAS SMITH
(respondent)

FILE NO/S:

Appeal No 12200 of 2013
DC No 704 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2014

JUDGES:

Margaret McMurdo P and Fraser JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused, with costs.

CATCHWORDS:

INTEREST – RECOVERABILITY OF INTEREST – IN GENERAL – where an unsuccessful defendant in a defamation action was ordered to pay damages with interest – where interest on general damages accrued from the date of the claim and interest on aggravated damages accrued from the first day of trial – whether the primary judge erred in the exercise of her discretion to award interest

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the applicant was ordered to pay costs on the standard basis – where the applicant argued he successfully defended six of the nine imputations pleaded and therefore costs should be awarded according to the issues – whether the primary judge’s discretion as to costs had miscarried

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684

Greig v Win Television NSW Pty Ltd [2009] NSWSC 877, cited
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131, cited

COUNSEL:

P J Favell for the applicant
N H Ferrett for the respondent

SOLICITORS:

Jonathan C Whiting & Associates for the applicant
M+K Lawyers for the respondent

MARGARET McMURDO P: I agree with Fraser JA’s reasons for refusing this application for leave to appeal with costs.

FRASER JA: The unsuccessful defendant in a defamation action has applied for leave to appeal from orders concerning interest on damages and costs. The proceedings are described in my reasons in the related application CA6982/2013, in which judgment is also given today.

Interest

The primary judge ordered the defendant (the applicant in this matter) to pay interest on the damages awarded to the plaintiff (the respondent in this matter) at five per cent per annum, calculated on general damages from 13 March 2009 to 27 November 2013 and calculated on aggravated damages from 11 March 2013 until 27 November 2013. The application for leave to appeal and the draft notice of appeal seek instead an order that the defendant pay the plaintiff interest on general damages at three per cent per annum for a period of one year.

The period of one year was selected on the basis of arguments that, although the publication occurred on 14 March 2008, the claim was not commenced until…

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.

Continue reading Mather v Smith (No 2)

Details

AGLC: Mather v Smith (No 2) [2014] QCA 66
Case: [2014] QCA 66
Decision Date: 4 April 2014

CaseChat Overview and Summary

The case of Mather v Smith (No 2) involved an appeal against an order for damages in a defamation case. The respondent, Smith, sought damages from the appellant, Mather, for defamatory statements made. Following the trial, the primary judge ordered Mather to pay damages, including interest, and costs on the standard basis. Mather appealed the decision, arguing that the judge erred in the exercise of her discretion in awarding interest and costs.

The primary legal issues in this appeal were whether the primary judge correctly exercised her discretion in awarding interest on damages and whether the judge correctly exercised her discretion in ordering Mather to pay costs on the standard basis. Regarding the interest, the court needed to determine whether interest on general damages should accrue from the date of the claim and whether interest on aggravated damages should accrue from the first day of trial. On the matter of costs, the court had to assess whether Mather successfully defended six of the nine imputations pleaded, thus entitling him to a costs award according to the issues.

The court found that the primary judge correctly exercised her discretion in awarding interest and costs. The court upheld the judge's decision that interest on general damages accrued from the date of the claim, and interest on aggravated damages accrued from the first day of trial. The court also found that the primary judge did not miscarry in her exercise of discretion in ordering Mather to pay costs on the standard basis, rejecting Mather's argument that he successfully defended six of the nine imputations pleaded.

The court dismissed the appeal, denying Mather leave to appeal and ordering him to pay costs. The court found no error in the primary judge's exercise of discretion in awarding interest and costs, affirming the orders made by the primary judge.

Orders

Orders of the court

Application for leave to appeal refused, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Mather v Smith (No 2) [2014] QCA 66
PARTIES:	GLENDA MARY MATHER (applicant) v JOHN THOMAS SMITH (respondent)
FILE NO/S:	Appeal No 12200 of 2013 DC No 704 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused, with costs.
CATCHWORDS:	INTEREST – RECOVERABILITY OF INTEREST – IN GENERAL – where an unsuccessful defendant in a defamation action was ordered to pay damages with interest – where interest on general damages accrued from the date of the claim and interest on aggravated damages accrued from the first day of trial – whether the primary judge erred in the exercise of her discretion to award interest DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the applicant was ordered to pay costs on the standard basis – where the applicant argued he successfully defended six of the nine imputations pleaded and therefore costs should be awarded according to the issues – whether the primary judge’s discretion as to costs had miscarried Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684 Greig v Win Television NSW Pty Ltd [2009] NSWSC 877, cited Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191, cited John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131, cited
COUNSEL:	P J Favell for the applicant N H Ferrett for the respondent
SOLICITORS:	Jonathan C Whiting & Associates for the applicant M+K Lawyers for the respondent