Photi v Target Australia Pty Ltd (No. 3)

Reported Decision: 340

District Court

CITATION:	Photi v Target Australia Pty Ltd (No. 3) [2008] NSWDC 14
HEARING DATE(S):	15/02/2008
JUDGMENT DATE:	22 February 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) The defendant is to pay the plaintiff’s costs for the hearing on 25-27 June and subsequent directions dates 9 August, 24 August, 18 September, 4 October, 9 November, 23 November, 11 December 2007 and 15 February 2008 on an indemnity basis; (2) Exhibits retained for 28 days.
CATCHWORDS:	Tort - costs - application for indemnity costs when trial adjourned due to late amendment - s.48A Defamation Act 1974 (NSW)
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss.60 and 98 Defamation Act 1974 (NSW), ss.7A, 13 and 48A Defamation Act 2005(NSW) Supreme Court Rules 1970 (NSW), Part 52A r.33
CASES CITED:	Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Jones v Sutton (No. 2) [2005] NSWCA 203 National Auto Glass Supplies (Australia)Pty Ltd (No 9) [2007] FCA 1826 Photi v Target Australia Pty Ltd [2007] NSWDC 265 Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302 Sims v Wran [1984] 1 NSWLR 317 West & Anor v Nationwide News Pty Ltd [2003] NSWSC 767
PARTIES:	Plaintiff: Julia Photi Defendant: Target Australia Pty Ltd
FILE NUMBER(S):	3364 of 2006
COUNSEL:	Plaintiff: L Evans Defendant: M Barko
SOLICITORS:	Plaintiff: Stephen Spinak Solicitor Defendant: McCabe Terrill

Introduction

1. The plaintiff in these proceedings was awarded a total of $85,000 in damages in actions for assault, wrongful arrest, false imprisonment and defamation: Photi v Target Australia Pty Ltd [2007] NSWDC 265 (11 December 2007). Interest on damages has been agreed at $5,016.

2. The plaintiff now seeks an order for indemnity costs of the trial pursuant to s.48A Defamation Act 1974 (NSW) and s.98 Civil Procedure Act 2005 (NSW). The basis for the application is the defendant’s conduct of the trial, and in particular the late application (made in the course of addresses) to amend the defence to plead a defence of qualified privilege at common law. The history of the delay to the proceedings caused by this late amendment is set out in my judgment of 11 December 2007 at [7] – [18]. Effectively, the handing down of judgment was delayed from 27 June (the last day of the trial) to 23 November (when the parties completed their submissions, following which I handed down my judgment of 11 December 2007).

3. The defendant concedes that the late amendment was made in circumstances warranting an order for indemnity costs, but submits that this should be restricted to the costs thrown away by reason of the late amendment, namely from 27 June to 23 November 2007. The defendant also relies upon s.48A to demonstrate the “reasonableness” of the defendant’s conduct in accordance with that section, and submits that the conduct referred to in s.48A as constituting grounds for indemnity costs has not been made out.

Section 48A