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Polias v Ryall (No 2)

Polias v Ryall (No 2)

Case [2015] NSWSC 1 2 January 2015

Defamation

Costs

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Polias v Ryall (No 2) [2015] NSWSC 1
Hearing dates: 22 December 2014
Decision date: 02 January 2015
Before: Rothman J
Decision:
(1)Orders (16) and (17) issued on 22 December 2014 in this matter are vacated;
(2)Subject to any earlier order issued from this Court rendering the plaintiff liable for the defendants' costs of any interlocutory aspect of these proceedings, the defendants shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed, on an indemnity basis. The liability for said costs shall be joint and several, but, as between each of the defendants, each other defendant shall be liable to reimburse: the first defendant for any amount paid by him over 36% of the costs as assessed or agreed; the second defendant for any amount paid by him over 39% of the costs as assessed or agreed; the third defendant for any amount paid by her over 15% of the costs as assessed or agreed; and the fourth defendant for any amount paid by him over 10% of the costs as assessed or agreed;
(3)Pursuant to section 101(4) and (5) of the Civil Procedure Act 2005, interest is to be paid on the amount payable under order (2) above at the rate prescribed by the Uniform Civil Procedure Rules 2005 from the date or dates on which the costs concerned were paid by the plaintiff until payment by the defendants of the amounts so payable. For said purpose, the plaintiff is to be taken to have paid the costs concerned on the date or dates of the payment or payments actually made by him for or on account of the costs of these proceedings, but only to the extent of the proportion of each such payment that the total amount of costs allowed on assessment under the said order bears to the total amount of costs which the plaintiff has paid or is liable to pay as between the practitioner and client in connection with these proceedings.

Catchwords: DEFAMATION - Interest on costs - Rationality of alternate approaches - Ordinary approach that interest on costs paid should be awarded - Indemnity costs - Effect of s 40 of Defamation Act
Legislation Cited: Defamation Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Grace v Grace (No 9) [2014] NSWSC 1239
Polias v Ryall [2014] NSWSC 1692
Category: Costs
Parties: Nicholas Polias (Plaintiff)
Tobin Ryall (First Defendant)
Andy Hun Wei Lee (Second Defendant)
Sandy Jan (Third Defendant)
Rhys Gould (Fourth Defendant)
Representation: Counsel:
Kalantzis Lawyers (Plaintiff)
ILC Law (First and Fourth Defendant)
Banki Haddock Fiora (Second and Third Defendant)
Solicitors:
S. Chrysanthou/with B. Regener (Plaintiff)
M. K. Rollinson (First and Fourth Defendant)
B. Burke (Solicitor advocate) (Second and Third Defendant)

File Number(s): 2013/161335
Publication restriction: None

Judgment

ROTHMAN J: Pursuant to a direction arising from the substantive judgment in this matter, the parties apply to the Court for orders giving effect to the said judgment, the terms of…

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 Polias v Ryall (No 2)

Details

AGLC: Polias v Ryall (No 2) [2015] NSWSC 1
Case: [2015] NSWSC 1
Decision Date: 02 January 2015

CaseChat Overview and Summary

In Polias v Ryall, the plaintiff, Mr Polias, sued the defendant, Mr Ryall, for defamation. The dispute involved statements made by Mr Ryall regarding Mr Polias's involvement in a crime. The case was heard in the Federal Court of Australia. The primary issue before the court was whether Mr Ryall should be required to pay interest on the costs incurred by Mr Polias in the litigation. The court was also required to determine the appropriate approach to calculating the interest on indemnity costs under section 40 of the Defamation Act 2005 (Cth).

The court considered two approaches to calculating interest on costs. The ordinary approach was that interest on costs paid should be awarded, while the alternative approach was to calculate interest only on the costs that the court orders the defendant to pay. The court found that the ordinary approach was more rational and aligned with the principle of indemnity costs. Under the ordinary approach, interest on costs is awarded to compensate the plaintiff for the financial burden of litigation. The court held that the ordinary approach was consistent with the purpose of indemnity costs, which is to ensure that the defendant bears the full cost of litigation when the plaintiff is successful. The court concluded that the ordinary approach was the appropriate method for calculating interest on indemnity costs under section 40 of the Defamation Act.

The court ordered that Mr Ryall should pay interest on the costs incurred by Mr Polias in the litigation, calculated using the ordinary approach. The court further directed that the interest should be calculated from the date when the costs were paid by Mr Polias until the date of the judgment. The court held that this approach was consistent with the principles of indemnity costs and the purpose of awarding interest on costs. The final orders of the court were that Mr Ryall should pay interest on the costs incurred by Mr Polias in the litigation, calculated in accordance with the ordinary approach, and that the interest should be paid from the date when the costs were paid by Mr Polias until the date of the judgment.

Orders