Plenty v Dickson - [2009] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PLENTY & ANOR v DICKSON & ANOR
[2009] SASC 9
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)
19 January 2009
DEFAMATION - DAMAGES - GENERAL DAMAGES - REVIEW OF ASSESSMENT
DEFAMATION - DAMAGES - SPECIAL DAMAGES
Appeal against award of damages for defamation - whether award was manifestly inadequate - whether Judge should have concluded that the defendants had acted with malice - whether Judge erred in failing to award aggravated or exemplary damages.
Held: facts do not justify a finding of express malice - no evidence so support an award of aggravated or exemplary damages - appeal dismissed.

PROCEDURE - COSTS - APPEALS AS TO COSTS - MISTAKE OF LAW OR FACT
Cross appeal - whether Judge erred in awarding costs to the appellants.
Held: Judge acted under a misunderstanding of the terms of the former rule - discretionary order of the Judge in regard to costs of the defamation proceedings needs to be revisited - discretion exercised by Full Court reaching same result as Judge - cross-appeal dismissed.
Supreme Court Civil Rules 2006 (SA) R 8, R 263; Supreme Court Civil Rules 1987 (SA) R 101.02A.b; Local and District Court Act 1926 (SA) s 42; Supreme Court Act 1935 (SA) s 40; Statutes Amendment (Jurisdiction of Courts) Act 1981 (SA) s 5; Statutes Amendment (Courts) Act 1985 (SA), referred to.
Plenty & Anor v Seventh Day Adventist Church & Anor [2006] SASC 361; Gray v Motor Accident Commission (1998) 196 CLR 1; Cassell & Co Ltd v Broome [1972] AC 1027; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Silverblade v Nelson (1980) 24 SASR 310; Bunker v James (1980) 26 SASR 286; Stevens v Chandler (1988) 46 SASR 541, considered.

PLENTY & ANOR v DICKSON & ANOR
[2009] SASC 9
Full Court Gray, Vanstone and Anderson JJ
GRAY J.

This appeal and cross-appeal arise from the publication of defamatory material.
Sydney Graham Plenty and Deanne Plenty claimed damages against The South Australian Conference of the Seventh Day Adventist Church and Alex Raymond Dickson, its Communications Director. The defamation was made by the publication, in the Advertiser newspaper on 29 February 1980, of a letter written by Mr Dickson to the editor of the Advertiser.
Proceedings were issued on 4 November 1980.[1] Consent judgments were entered on 22 May 1991 in the proceedings, in favour of Mr and Mrs Plenty, for damages to be assessed. In 2006, the trial Judge assessed the damages for each plaintiff in the amount of $10,000.[2] The Judge later awarded each plaintiff $10,070 by way of interest.[3] As a result, Mr and Mrs Plenty each recovered damages and interest totalling $20,070. The Judge made an order for the costs of the proceedings in favour of Mr and Mrs Plenty. Judgment was not formally entered until 17 May 2007.
[1] Supreme Court Action 3169 of 1980.
[2]

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 Plenty v Dickson

Details

AGLC: Plenty v Dickson [2009] SASC 9
Case: [2009] SASC 9
Decision Date: 19 January 2009

CaseChat Overview and Summary

In the case of Plenty v Dickson, the plaintiff, Plenty, sought to appeal the assessment of damages awarded to him by the trial judge, Dickson. The dispute centred around the quantum of damages awarded for defamation and whether the trial judge had erred in his assessment. Additionally, the defendants sought a review of the costs awarded to the plaintiff. The case was heard by the Supreme Court of South Australia, with Justices Gray and Vanstone presiding.

The legal issues that the court had to decide included whether the award of damages was manifestly inadequate, whether the trial judge should have concluded that the defendants acted with malice, and whether the trial judge erred in failing to award aggravated or exemplary damages. The court also had to consider whether the trial judge erred in awarding costs to the plaintiff under the new rules that came into effect after the action was initiated.

The court found that the facts did not justify a finding of express malice and that there was no evidence to support an award of aggravated or exemplary damages. The court also determined that the trial judge did not err in awarding costs to the plaintiff, as the circumstances of the case justified the exercise of discretion under section 42 of the Supreme Court Act 1935. The court dismissed the appeal and the cross-appeal, holding that the trial judge's approach to the question of damages was correct and that the quantum of damages awarded was within the available area of discretion.

In conclusion, the court held that the trial judge's assessment of damages was correct and that there was no error in the approach taken to the question of damages. The court also found that the trial judge did not err in awarding costs to the plaintiff under the new rules that came into effect after the action was initiated. The appeal and cross-appeal were dismissed.

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

GRAY J

Section 42 was not referred to by the trial Judge, and was not referred to by counsel on the hearing of the appeal. In my view, the same reasoning that compels the exercise of a discretion under Rule 263(2)(g) of the 2006 Rules would also compel the exercise of the discretion under section 42(2), were that an appropriate discretion to be exercised. Conclusion I would dismiss the appeal and the cross-appeal. VANSTONE J: I agree that no error in the approach taken by the learned trial judge to the question of damages has been demonstrated and that the quantum of damages awarded is within the available area of discretion. I have nothing to add to the reasons of Gray J on those matters. I turn to the cross-appeal against the orders for costs made in the plaintiffs’ favour. Section 40 Supreme Court Act 1935 and r 263 Supreme Court Civil Rules 2006 (SA) (“the 2006 Rules”) governed the exercise of the judge’s discretion as to costs. The 2006 Rules apply to actions and appellate proceedings commenced prior to the commencement of those rules: r 8. However, the court is given a discretion to “give a direction displacing the general principle”: r 8(2)(b). Section 40(1) Supreme Court Act provides that costs shall be in the discretion of the court. Section 40(2) provides that where a plaintiff’s damages fall short of the relevant amount, he will not recover any costs unless the justice of the circumstances dictates otherwise. Its terms are as follows:40—Power of court with regard to costs(1) …(2) If—(a)an action for the recovery of damages or any other monetary sum is brought in the court; and(b)the action might have been brought in the District Court; and(c)the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph,no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action. As contemplated by s 40(2), r 263 of the 2006 Rules fixes amounts, which vary depending on the nature of the claim. It provides, relevantly,263—Court's discretion as to costs(1) As a general rule, costs follow the event.(2)The general rule is, however, subject to specific rules to the contrary and also to the following exceptions (which apply subject to the Court's order to the contrary)—…(g)in an action founded on a claim for defamation, general costs of action are not to be awarded in favour of the successful plaintiff unless the damages exceed $25 000;… In his reasons the judge referred to the “transitional provisions” in the 2006 Rules. I take that to be a reference to r 8. He noted that the new rules were to apply “subject to a direction by the court to the contrary”. His Honour then referred to r 263(2)(g) observing that it did not apply if the court ordered to the contrary. The learned trial judge then found that there was “good reason to direct that r 263(2)(g) should not apply to the present case”. In support of that view, the judge cited the date of commencement of the action as 28 June 1982. (The original writ was dated 4 November 1980.) He observed that judgment was entered on 11 June 2003. He referred to circumstances which justified the subsequent delay in undertaking the assessment. He said that in “the special circumstances of this case, I think it would be unfair to deprive the plaintiffs of costs by reason of a change in the rules at a late stage in these lengthy proceedings”.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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