Supreme Court
New South Wales
Medium Neutral Citation: Megna v Marshall (No 2) [2011] NSWSC 52 Hearing dates: 27 August 2010 Decision date: 18 February 2011 Jurisdiction: Common Law Before: Simpson J Decision: The parties to provide Short Minutes of Order to reflect the conclusions in this judgment.
Catchwords: COSTS - successful action by plaintiffs in defamation - claim for interest and costs - offers of compromise rejected by defendants - method of calculating interest - applicable interest rate - order for costs on an ordinary basis - order for costs on an indemnity basis Legislation Cited: Civil Procedure Act 2005
Defamation Act 1974
Uniform Civil Procedure Rules 2005Cases Cited: Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55
Australian Consolidated Press v Driscoll (1988) Aust Torts Reports 80-175
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; 171 CLR 657
Megna v Marshall [2010] NSWSC 686
Tory v Megna [2007] NSWCA 13Category: Procedural and other rulings Parties: Michael Megna (First Plaintiff)
Russell James Lloyd (Second Plaintiff)
David John Marshall (First Defendant)
Richard Martin Tory (Second Defendant)Representation: Counsel:
T Molomby SC (Plaintiffs)
J Hmelnitsky (First Defendant)
A T S Dawson (Second Defendant)
Solicitors:
Etheringtons Solicitors (Plaintiffs)
Horowitz & Bilinsky (First Defendant)
Osborne Bricknell Howell (Second Defendant)
File Number(s): 2004/181254
Judgment
On 25 June 2010 I delivered judgment in proceedings in defamation brought by Michael Megna and Russell James Lloyd against David John Marshall and Richard Martin Tory: Megna v Marshall [2010] NSWSC 686. I awarded damages to Mr Megna against each defendant in the sum of $395,000; and to Mr Lloyd against each defendant in the sum of $220,000.
Two supplementary questions now arise. Mr Megna and Mr Lloyd claim orders for interest on the damages awarded, and orders for costs, to be assessed on the usual basis from the commencement of the proceedings until 25 January 2006, and on an indemnity basis from 26 January 2006. By reason of the extensive and complicated history of the proceedings, determination of those claims has considerable complexity.
I set out a brief history of the proceedings at [4]-[21] of the judgment. Because the unusual history is relevant to the issues now to be determined, I recapitulate, so far as is necessary, the factual background.
The publications the subject of the claim were a series of newsletters circulated anonymously in the Drummoyne Municipality between March 1998 and September 2003 at approximately monthly intervals. In February 2004 Mr Megna sought and was granted an order of the kind made in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. This led to the filing of a statement of claim on 8 April 2004, naming Mr Marshall and Mr Tory as defendants, in which Messrs Megna and Lloyd asserted that, of the 28 newsletters, 17 conveyed imputations…
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- AGLC
- Megna v Marshall (No 2) [2011] NSWSC 52
- Case
- [2011] NSWSC 52
- Decision Date
CaseChat Overview and Summary
The court reasoned that the offer of compromise was not made in good faith and was not a genuine attempt to resolve the dispute. The court found that the offer was made as a tactical move to avoid liability and to delay the proceedings. The court held that the plaintiffs were not required to consider the offer and that the defendants were not entitled to any credit for the offer. The court further held that the plaintiffs were entitled to costs on an indemnity basis for the proceedings up to the trial because the defendants' conduct was unreasonable and vexatious. The court found that the defendants had acted in a manner that was oppressive and burdensome to the plaintiffs and that the plaintiffs were entitled to be compensated for their costs. The court ordered the defendants to pay the plaintiffs' costs on an indemnity basis for the proceedings up to the trial and on an ordinary basis for the trial.
Orders
Orders of the court
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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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