Megna v Marshall (No 2) - [2011] NSWSC 52

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 2005
Cases 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 13
Category: 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…

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 Megna v Marshall (No 2)

Details

AGLC: Megna v Marshall (No 2) [2011] NSWSC 52
Case: [2011] NSWSC 52
Decision Date: 18 February 2011

CaseChat Overview and Summary

In Megna v Marshall (No 2), the plaintiffs sought interest and costs from the defendants after successfully pursuing a defamation claim. The defendants had made offers of compromise which were rejected by the plaintiffs. The court had to determine the method of calculating interest on the damages awarded, the applicable interest rate, and the orders for costs. The court found that the plaintiffs were entitled to interest at the Commonwealth Bank of Australia's standard variable home loan rate from the date of the defamatory publication until the date of judgment. The court further found that the plaintiffs were entitled to costs on an ordinary basis for the trial and on an indemnity basis for the proceedings up to the trial. The court held that the defendants' offers of compromise were not genuine and that the plaintiffs were not required to consider them.

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