Patten v Moffatt

[1999] NSWSC 1322

CITATION:	Patten v Moffatt & Ors [1999] NSWSC 1322
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	13089/92
HEARING DATE(S):	13 December 1999
JUDGMENT DATE:	17 February 2000
PARTIES :	Wesley John Patten (Pl) Tom Moffatt (1 Def) Glen Rose (2 Def) The State of New South Wales (3 Def) Australian Broadcasting Commission (X-Def)
JUDGMENT OF:	Kirby J

COUNSEL :	B McClintock SC (Defs) T K Tobin QC/J C Gibson (X-Def)
SOLICITORS:	Crown Solicitor (Defs) Judith Walker - ABC (X-Def)
CATCHWORDS:	Costs of Cross Claim
ACTS CITED:	Law Reform (Miscellaneous Provisions) Act 1946 - s5 Defamation Act 1974 - s13 Wrongs Act 1936 - s25 Supreme Court Act 1970 - s76 Law Reform (Married Women & Tortfeasors) Act 1935 (UK)
CASES CITED:	Merewether v Nixon (1897) 101 ER 1337 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 Hanson v Matthew Bros Contractors Ltd & Anor (1991) 55 SASR 183 Coppins v Helmers (1969) 72 SR (NSW) 273 Jerred v T Roddam Dent & Son Ltd (Glen Line Ltd Third Party) [1948] 2 All ER 104 Brazendale v Kenna [1961] Tas SR 199 Sherras v Van der Maat [1989] 1 Qld R 114 Blackburn v State of New South Wales (Hunt J, unreported, 31 January 1991) Skinner & Edwards (Builders) Pty Ltd v Australian Telecommunications Corp (1992) 27 NSWLR 567 Quirk v Bowden (1992-3) 112 ACTR 1 The Mill Wall (1905) P105 at 174 Johnson's Tyne Foundary Pty Ltd v Maffra Corporation (1948) 77 CLR 544 Ritter v Godfrey [1920] 2 KB 47
DECISION:	Refer para 46

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Thursday 17 February 2000

13089/92 - Wesley John PATTEN v Tom MOFFATT, Glen ROSE and THE STATE OF NEW SOUTH WALES [No. 5]

JUDGMENT (on Application by Defendant against Cross Defendant for Costs)

HIS HONOUR :

Background

1   On 4 March 1992, and again on 7 March 1992, the ABC screened a documentary entitled “Cop It Sweet”. The documentary was made in co-operation with the New South Wales Police Service. It depicted police officers from the Redfern Police Station in the course of their duties.

2   One segment showed two such officers, Constables Moffatt and Rose, trailing a yellow car through the back streets of Redfern. The sequence included a conversation between the police officers in which they discussed the possible identity of the driver. The police car was then shown pulling alongside the yellow vehicle. One officer, Const Moffatt, got out of the police car. He was then shown berating the owner of the vehicle, Mr Wesley Patton, for having bald tyres.

3   Mr Patton sued Const Moffatt, Const Rose, and their employer, the State of New South Wales, for defamation. He asserted that the words and images on the screen gave rise to the following imputations:

(a) The Plaintiff by reason of being an Aboriginal is likely to break the law.

(b) The Plaintiff is known to the police as a law breaker.

(c) The Plaintiff is racially inferior.

(d) The Plaintiff knowingly allowed his car to be driven in breach of the law by reason of his knowing that it had one bald tyre and the other tyres were becoming bald.

4 The defendants joined the ABC as a third party, seeking contribution or indemnity under s5 of the Law Reform (Miscellaneous Provisions) Act 1946. Both actions were heard together by a jury between 22 November 1999 and 3 December 1999. The jury found that the imputations (a) and (d) were conveyed, and were defamatory of the plaintiff. The defendants did not establish the only defence raised, that under s13 of the Defamation Act 1974. The plaintiff was awarded $25,000 damages. Interest was claimed by the plaintiff, and conceded by the defendants. Judgment was entered for the plaintiff against the defendants for the sum of $28,875, plus costs. The plaintiff successfully made application that the costs be assessed according to the full Supreme Court scale.

5   The jury also determined the issues arising under the Cross Claim. It found that it was just and equitable that the Cross Defendant (the Australian Broadcasting Corporation) (“the ABC”) should contribute 90 percent of the damages awarded to the plaintiff.

Application by the Defendants

6   The defendants seek costs in respect of three matters (identified as three Categories):

· First, costs on the cross claim against the ABC (Category 1).

· Second, the plaintiff’s costs, which the defendant was ordered to pay (or at least 90 percent of those costs) (Category 2).

· Third, the defendants’ own costs (or at least 90 percent of them) in resisting the plaintiff’s claim (Category 3).

7   The defendants, in each case, seek costs assessed on a party and party basis.

8 The cross defendant, the ABC, resisted each claim. It did so upon two bases. First, it pointed to the terms of the Law Reform (Miscellaneous Provisions) Act 1946, and questioned whether there was power to make the orders which the defendants’ seek. Secondly, it pointed to the conduct of the defendants in the course of the litigation. It suggested, as a matter of discretion, that such conduct disentitled the defendants to such orders.

9   I will deal first with the power to make an order, as it applies to each category, and then with the matters said to bear upon the discretion to award costs.

The Terms of the Law Reform (Miscellaneous Provisions) Act 1946

10   The Law Reform (Miscellaneous Provisions) Act 1946, relevantly, is in these terms:

“s5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) -
(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage;

(b) ….

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.
s5(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

11   The reforms provide one tort feasor with a right of action against another, overcoming the rule in Merewether v Nixon (1879) 101 ER 1337. Nothing is said about costs. It cannot be supposed, however, that a right of action would be provided without costs. The reforms introduced by the Act should not be seen as self contained. Rather, they were engrafted upon an existing system. There are, without elaboration, scattered references to that system throughout the provisions. Section 5(1)(a) refers to judgments. Section 5(1)(b) alludes to the usual order as to costs (that costs follow the event), and identifies a circumstance in which that rule may not apply. Section 5(3)(b) refers to appeals. The provisions operate within the ordinary rules as they relate to costs and interest.

12   Barwick CJ in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 said this: (at 219)

“The effect of s5(1)(c), in my opinion, is that a tort- feasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act may successfully recover contribution from another tort-feasor who has also come under an obligation to pay money in respect of the same damage and he may also recover contribution from any other tort-feasor who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act.”

13 The enforceable obligation will typically include the damage found to have been caused by the wrongdoing, interest and costs. The Court may order another tort-feasor, liable in respect of the same damage, to contribute. The amount of the contribution is that found by the Court to be “just and equitable” having regard to that person’s responsibility for the damage. The Court is required to fix a proportion of the antecedent liability which it is just and equitable that the other tort-feasor should pay. Since the antecedent liability may include costs and interest, the contribution extends, in my view, to the defendants’ liability to pay a proportion of such amounts. The word “damage”, where it appears in s5, is not intended as a limitation upon the amount which one tort-feasor may recover from another. I agree with the following observation by Cox J in Hanson v Matthew Bros Contractors Ltd & Anor (1991) 55 SASR 183, where he said this, in the context of the South Australian equivalent of s5 of the Law Reform Act: (at 192)

“In other words, liability in respect of the claimant’s damages is made the means of identifying a tort-feasor who must contribute, but does not necessarily denote the extent of his contribution. The word ‘contribution’ is not defined. If parliament had intended to restrict it to the damages or compensation, with or without costs, paid or payable to the claimant, it would have been easy to say so. Cf the references to ‘damages or other compensation’ in s25(3). The only clear limitation in the scheme is the requirement that the contribution recoverable be such as may be found to be just and equitable, having regard to the extent of the contributing tort-feasor’s responsibility for the damage suffered by the claimant. That, on the face of it, is a very liberal test.”

14   Category 1 and Category 2 costs claimed by the defendants, do not, to my mind, present a difficulty. In respect of Category 1, the defendants were not able to shift entirely the responsibility to the cross defendants, the ABC. Nonetheless, they succeeded on the cross claim. The usual rule should apply. The defendants are entitled to their costs on the cross claim.

15   Turning to Category 2 (the plaintiff’s costs awarded against the defendants), those costs (and interest) formed part of the antecedent liability in respect of which the defendants’ sought contribution. It does not matter that the costs, at that moment, had not been quantified. The defendants were under “an enforceable obligation to pay money” (per Barwick CJ in Brambles). It is appropriate, in my view, to apply the proportion fixed by the jury (90 percent) to the costs and interest which the defendants were ordered to pay the plaintiff (cf Coppins v Helmers (1969) 72 SR (NSW) 273 at 276).

16   I am not persuaded that the matters identified by the ABC as going to my discretion in respect of costs (which I will describe below) should disturb either of the orders set out above in respect of Categories 1 and 2.

The Defendants’ Own Costs in Resisting the Plaintiff’s Claim

17 The third category is less certain. What is the source of power to award such costs? Is it the Law Reform (Miscellaneous Provisions) Act 1946, s5(2), or the broad powers of the Court to award costs (s76 Supreme Court Act 1970), or neither?

18   The authorities are helpfully collected by Cox J in Hanson v Matthew Bros Contractors Ltd & Anor (1990) 55 SASR 183. In Jerred v T Roddam Dent & Son Ltd (Glen Line Ltd Third Party) [1948] 2 All ER 104, Atkinson J found for the plaintiff against the defendant, and assessed the third party’s contribution as amounting to 90 percent. He awarded the defendant the costs of the third party proceedings (category 1), and ordered the third party to pay nine-tenths of the damages and costs payable to the plaintiff (category 2). Professor Glanville Williams referred to this case in his celebrated “Joint Torts and Contributory Negligence” (1951), making the following observation: (para 134)

“It is submitted that he should also be given contribution towards his own costs of defending the plaintiff’s action where they were reasonably incurred.”

19 Professor Glanville Williams did not elaborate, nor provide authority for his observation. The case had been determined, incidentally, under the Law Reform (Married Women and Tort-Feasors) Act 1935 (UK), which was the model for similar provisions in Australia, including s5 of the Law Reform Act.

20   In Brazendale v Kenna [1961] Tas SR 199, the Full Court of Tasmania (Crisp, Crawford, and Cox JJ) made the following observation, again in the context of a personal injury action: (at 212)

“As to the defendant’s costs incurred in resisting the plaintiff’s claim, we agree that there is no reason in principle why there should not be included in the amount recoverable by a defendant from a third party an appropriate contribution towards the defendant’s costs in resisting the plaintiff’s claim. … Such an amount cannot be awarded as costs, but only, if at all, as part of the ‘contribution’ mentioned in s3(2) of the Tortfeasor and Contributory Negligence Act 1954 (Tas). We do not express any opinion as [to] whether such costs or even a share of the plaintiff’s costs could be included in ‘contribution’. Glanville Williams in Joint Torts and Contributory Negligence , par 134, suggests that costs could be so regarded, but quotes no authority….”

21   In Sherras v Van der Maat [1989] 1 Qld R 114, Thomas J made the following observation in the context of the Queensland equivalent of the New South Wales statute: (at 118)

“It therefore seems to me that prima facie the statutory right of contributions does not entitle a defendant to obtain against a co-defendant his costs of unsuccessfully defending the plaintiff’s claim against him.”

22   Thomas J, however, was persuaded that there was power to achieve the same result under the ordinary costs rules. He ordered the third defendants to pay the costs incurred by the first and second defendants in unsuccessfully resisting the plaintiff’s claim.

23   In Hanson v Matthew Bros Contractors Ltd & Anor, Cox J ultimately determined that there was no power under s25 of the Wrongs Act 1936 to order what I have termed category 3 costs. He said this: (at 197)

“Despite any countervailing considerations, I think I should hold that s25 of the Wrongs Act , so far as the nature of the contribution that might be recovered is concerned, is intended simply to bring tort-feasors into line with other categories of persons, such as sureties, who owe a common duty to another under the general law. This means that the contribution that may be ordered in third party proceedings under s25 cannot include any share of a defendant tort-feasor’s own costs of defending the claimant’s action against him.”

24   Cox J did not deal expressly with the other suggested source of power, namely, the ordinary costs rules.

25 In my view, s5(2) of the Law Reform (Miscellaneous Provisions) act 1946 is not available as a source of power. The right to contribution is a right in respect of an enforceable obligation to pay money for the damage (and interest and costs) caused by the tortious act. These words are not apt to refer to the defendant’s obligation to pay his own costs. However, like Thomas J, I believe s5 was intended to operate within the context of the ordinary costs rules. The issue, therefore, is whether, under those rules, it is appropriate that the cross defendant should pay the defendants’ costs in resisting (unsuccessfully) the plaintiff’s action? I now turn to that issue.

The Ordinary Costs Rules

26 The award of costs is a matter of discretion (s76(1) Supreme Court Act). The discretion must obviously be exercised judicially, that is to say, not capriciously. The cross defendant, the ABC, pointed to three matters said to be relevant to that discretion:

· First, the defendants were wrongdoers.

· Second, the defendants’ refusal to mediate.

· Third, the defendants’ conduct in the litigation.

27   Dealing with each of these matters, I believe, unquestionably, it is relevant that the jury determined that the defendants were wrongdoers. They published two defamatory imputations concerning the plaintiff. The ABC, in written submissions, provided a number of reasons why it should not be ordered to pay any of the defendant’s costs, including the following:

“…the Defendants being the principal wrongdoers, whose actions led the Plaintiff to sue them in the first place ( Ritter v Godfrey [1920] 2 KB 47).”

28   That submission goes too far. The defendants were not sued for the initial publication (to the camera crew in the police car, nor those gathered in the street at Redfern once Const Moffatt alighted). They were sued for the republication on national television. In that context, in the light of the jury finding, it is hardly apposite to describe the defendants as the “principal wrongdoers”.

29   Having said that, the case is very different from Sherras v Van der Maat, where the Court ordered one of the parties (the third defendant) pay what I have termed category 3 costs under the contribution notices served by the first and second defendants.

30   The plaintiff was a bricklayer who suffered personal injury. He was employed by the first defendant. The first defendant was a sub-contractor of the second defendant. The third defendant was the party who supplied and erected a scaffolding which thereafter collapsed. The plaintiff succeeded against all defendants. His success in respect of the first and second defendants was based upon a breach of statutory obligation to supply safe scaffolding. The success against the third defendant was also based upon a breach of the same statute, and negligence. The first and second defendants had admitted, on the pleadings, the essential elements which gave rise to their liability under statute. They, however, denied negligence, as did the third defendant. The case was fought on the issue of negligence. Third party notices were exchanged between defendants. Thomas J found that the contribution by the third defendant to the liability of the first and second defendants should, in each case, be one hundred percent. He also said this:

“In many, perhaps most cases in which a defendant unsuccessfully defends a plaintiff’s action, the discretion to order another even less successful defendant to pay his costs of defending the plaintiff’s action will not be made. This will usually follow from the fact that such costs may reasonably be regarded as having unnecessarily been incurred. However in the present case the only costs that could be so described are trivial or insignificant. It therefore seems to me that the present case is an appropriate one in which to order the third defendant to pay the costs of the first and second defendants, not only of the contribution proceedings, but also of defending the plaintiff’s action.”

31   In Hanson v Matthew Bros Contracting Ltd & Anor, Cox J referred to the usual practice where a number of defendants are found liable in different proportions. He said this: (at 196)

“It will generally be the case that any tort-feasor successfully sued for contribution by a defendant could have been made a co-defendant in the original proceedings, and it is not usual for a trial judge to order one unsuccessful defendant to pay any part of another unsuccessful defendant’s costs.”

32   He added:

“However, the courts these days assume a very wide power to make such costs orders, between the parties to a cause, as the circumstances require. Cf Brazendale v Kenna and Sherra v Van der Maat (supra). As at present advised - and the point was not argued before me - I see no reason to think that the general discretion as to costs that may be exercised under s40 of the Supreme Court Act and the Supreme Court Rules 1947 would not permit a trial judge, in exceptional circumstances, to make the kind of order that was made in those cases.”

33   Here, the jury determined that there was wrongdoing by the defendants, albeit only to the extent of ten percent of the damage. I will return to this issue later in these reasons.

34   Turning to the second matter (the refusal to mediate), the ABC relied upon an affidavit of Ms Judith Walker. The affidavit annexed correspondence passing between the parties. On 19 July 1999, Ms Walker, as the solicitor for the ABC, wrote to the plaintiff’s solicitor suggesting that the matter was appropriate for mediation. At the same time a letter was sent to the Crown Solicitor, making the same suggestion. The letter, it should be said, also invited the defendants to discontinue the cross claim, referring to the authority of Blackburn v State of New South Wales (Hunt J, unreported, 31 January 1991).

35   On 10 September 1999, the plaintiff’s solicitor indicated that the plaintiff “is happy to have the matter referred to mediation”. On 28 September 1999, the defendants’ wrote back stating that the matter was under consideration. The solicitor for the ABC sent a letter of reminder on 5 October 1999, the matter having been set down for trial in the meantime (on 22 November 1999). On 13 October 1999, the defendants responded in these terms:

“The defendants do not wish to refer the matter to mediation at this stage. The plaintiff’s solicitors have been requested to make an offer of settlement which will be considered by my clients.”

36   The ABC wrote back, reminding the defendants that the plaintiff had expressed an interest in mediation. It added these words:

“If this matter does proceed to trial the ABC intends to request the Court to take your client’s attitude to mediation into question on the issue of costs.”

37   The ABC, in these circumstances, made the following submission:

“The Defendants were unreasonable in refusing to take up the Cross-Defendant’s and Plaintiff’s offer of mediation. The Defendants had already lost their case in the Equal Opportunities Tribunal. They had no defence of substance, in that they abandoned both defences of qualified privilege during the trial. The Plaintiff and Cross-Defendant could not compromise their claims as against each other ( Skinner & Edwards at 578) and were both caught up in unnecessary expense.”

38   The defendants responded in a number of ways. First, the invitation was only an invitation to mediate. There is nothing to indicate that the mediation would have been successful. Secondly, there was no obligation upon the defendants to mediate. If the defendants believed that it was unlikely to be profitable, it should not be penalised for having made that judgment. Thirdly, there were other relevant ways in which the third party may have protected itself. It could have sent a Calderbank letter, or made an appropriate offer to the defendants, which it could then ask the Court to take into account on costs (cf Cole J in Skinner & Edwards (Builders) Pty Limited v Australian Telecommunications Corporation (1992) 27 NSWLR 567 at 578). Specifically, the cross defendant could have made an offer to contribute under Pt 22 r12. It is misleading to suggest that it was entirely dependent upon the defendants’ acquiescence to mediation to extricate itself from potential liability in respect of costs.

39   There were, no doubt, ways in which the ABC might have protected itself from costs, in the event of an adverse finding. Nonetheless, mediation was one way. There is a cost attached to mediation. However, the costs savings for a trial which was predicted to last (and did last) two weeks, were likely to be substantial. The plaintiff had indicated a willingness to participate. It is unfortunate, in these circumstances, that the defendants’ solicitors allowed the matter to drift, and ultimately responded negatively.

40   Were this the only matter, I would not place a great deal of weight on it. I do, nonetheless, believe it is relevant to the exercise of my discretion in respect of costs (cf Higgins J (with whom Miles CJ and Gallop J agreed) in Quirk v Bowden (1992-3) 112 ACTR 1 at 5).

41   The third matter said to be relevant related to the defendants’ conduct during the course of the litigation. It was suggested that the defendant litigated an issue (namely, responsibility for republication) which had no merit, which was then lost, and which occupied a good deal of time.

42   The costs recoverable are only those costs reasonably incurred in defending an action (The Mill Wall (1905) P105 per Collins MR at 174: Johnson’s Tyne Foundary Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 572). In Ritter v Godfrey [1920] 2 KB 47, Atkin LJ stated the principle in these terms: (at 60)

“It is not easy to deduce from these authorities what the precise principles are that are to guide a judge in exercising his discretion over costs. And yet as the discretion is only to be exercised where there are materials upon which to exercise it, it seems important to ascertain the principles upon which a judge is to discern whether the necessary materials exist. In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1.) brought about the litigation, or (2.) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3.) has done some wrongful act in the course of the transaction of which the plaintiff complains.”

43   However, the jury verdict on this issue is enigmatic. I do not believe one can say that the jury necessarily rejected the defendants’ case on republication. They may have. However, I believe it is arguable that the rejection of imputations (b) and (c) may be traced to an acceptance of the defendants’ position on republication, at least in part. Whatever the position, I do not believe an inference is available one way or the other. I therefore reject the suggestion that the conduct of the defendants unnecessarily prolonged the trial.

Relevant Matters

44   I am therefore left with the following matters which seem to me to be relevant.

· First, that the defendants were found by the jury to have been responsible in part for the plaintiff’s harm, albeit to a minor degree.

· Secondly, that had the plaintiff chosen to sue both the defendants and the ABC (as he might have done), the ordinary rule, where both are found liable, although in differing proportions, is that each defendant should pay its own costs.

· Thirdly, although the plaintiff did not sue the ABC, the defendants’ contribution action under s5 was heard at the same time. The cross defendants participated in the action to the extent that they wished, or thought prudent. Some issues were left to the defendants, no doubt because that was convenient.

· Fourthly, the defendants were invited, but declined, to mediate in circumstances where the plaintiff had indicated a willingness to do so, and where I believe it would have been reasonable for the defendants to have done so.

45   I do not believe that, in the circumstances, it is appropriate to order the cross defendant (the ABC) to pay the defendants’ costs, or any proportion of them.

46   The orders I make therefore are as follows:

(1) The cross defendant (the ABC) should pay the defendants’ costs of the cross claim.

(2) The cross defendant should pay 90 percent of the defendants’ liability to the plaintiff in respect of the judgment of $28,875, and costs.

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Last Modified: 06/26/2000