Poniatowska v Channel Seven Sydney Pty Ltd (No 3) - [2020] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD (No 3)
[2020] SASCFC 37
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 May 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - INTEREST ON JUDGMENTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS - OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES
In October 2011, the respondents broadcast a story which depicted the appellant as having defrauded and cheated Centrelink of $20,000 in single parent benefits. The appellant sued the respondents for defamation. The trial Judge dismissed the action. This Court allowed the appellant’s appeal on liability and assessed the appellant’s damages at $200,000 for non-economic loss and $80,000 for economic loss. This Court subsequently heard argument on the questions of interest and costs.
Held by the Court:
1.      Judgment to be granted in favour of the plaintiff against the defendants for $346,700 inclusive of pre-judgment interest calculated to and including 12 May 2020.
2.      Post-judgment interest is to run from and including 13 May 2020.
3.      The defendants are to pay the plaintiff’s costs of action on a party/party basis, except the costs that are subject of the orders made on 14 March 2013 and 13 November 2013.
4.      The respondents are to pay 60 per cent of the appellant’s costs of the appeal.
Supreme Court Act 1935 (SA) s 30C, s 114; Supreme Court Civil Rules 2006 (SA) r 188F, r 264; Supreme Court Civil Supplementary Rules 2014 (SA) r 208, r 217; Defamation Act 2005 (SA) s 38; Criminal Code Act 1995 (Cth) s 135.2, referred to.
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Cornes v The Ten Group Pty Ltd & Ors (No 2) [2011] SASC 141, applied.
Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361, distinguished.
Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111; Poniatowska v Channel Seven Sydney Pty Ltd (No 2) [2020] SASCFC 5; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131; McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270; Fisher v Channel Seven Sydney Pty Ltd (No 4) [2014] NSWSC 1616; Osborne v Kelly (1999) 75 SASR 392; Calderbank v Calderbank [1975] 3 All ER 333; Cornes v The Ten Group Pty Ltd & Ors (No 2) (2012) 114 SASR 106; Gacic v John Fairfax Publications Pty Ltd (No 2) [2014] NSWSC 738; Lower Murray Urban and Rural Water Corporation v Di Masi (No 2) [2014] VSCA 133, considered.

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD (No 3)
[2020] SASCFC 37
Full Court: Kourakis CJ, Blue and Nicholson JJ

THE COURT: This judgment deals with consequential questions of interest and costs following the delivery of the judgment of this Court in Poniatowska v Channel Seven Sydney Pty Ltd[1] on 27 September 2019. By that judgment, this Court allowed Ms Poniatowska’s appeal against the dismissal of her defamation action against the respondents (collectively Channel Seven), set aside the judgment of dismissal, decided that she was entitled to judgment for damages to be assessed and reserved further consideration of the final orders to be made to determine the appeal.
[1] [2019] SASCFC 111.
On 29 January 2020, this Court assessed Ms Poniatowska’s damages at $200,000 for non-economic loss and $80,000 for economic loss[2] and subsequently heard argument on the questions of interest and costs.
[2] Poniatowska v Channel Seven Sydney Pty Ltd (No 2) [2020] SASCFC 5.
Interest
Ms Poniatowska seeks an order, pursuant to s 30C of the Supreme Court Act 1935 (SA), for pre-judgment interest on the damages award and an order for interest, pursuant to subrule 264(7) of the Supreme Court Civil Rules 2006 (SA), on any award of costs made in her favour.
Pre-judgment interest
Section 30C is in these terms.
(1)Unless good cause is shown to the contrary, the court shall, upon the application of a party in favour of whom a judgment for the payment of damages, compensation or any other pecuniary amount has been, or is to be, pronounced, include in the judgment an award of interest in favour of the judgment creditor in accordance with the provisions of this section.
(2)The interest—
(a)     will be calculated at a rate fixed by the court; and
(b)     will be calculated in respect of a period fixed by the court (which must, however, in the case of a judgment given on a liquidated claim, be the period running from when the liability to pay the amount of the claim fell due to the date of judgment unless the court otherwise determines); and
(c)     is payable, in accordance with the court's determination, in respect of the whole or part of the amount for which judgment is given.
(3)Where a party to any proceedings before the court is entitled to an award of interest under this section, the court may, in the exercise of its discretion, and without proceeding to calculate the interest to which that party may be entitled in accordance with subsection (2) of this section, award a lump sum in lieu of that interest.
(4)This section does not—
(a)     authorise the award of interest upon interest; or
(ab)   authorise the award of interest upon exemplary or punitive damages; or
(b)     apply in relation to any sum upon which interest is recoverable as of right by virtue of an agreement or otherwise; or
(c)     affect the damages recoverable upon the dishonour of a negotiable instrument; or
(d)     authorise the award of any interest otherwise than by consent upon any sum for which judgment is pronounced by consent; or
(e)     limit the operation of any other enactment or rule of law providing for the award of interest.
Ms Poniatowska’s claim was not a liquidated claim and any pre-judgment interest is to be calculated in respect of a period fixed by the Court to be determined on the basis of relevant discretionary factors. It is common ground that the relevant period should commence from the date of first publication of the libel, that is, 26 October 2011. For reasons to be explained, the end of the relevant period should be the date on which this Court makes orders for damages and costs, that is, the date of delivery of this judgment.
Economic loss damages
In order to ascertain the appropriate interest rate in respect of the damages for economic loss, it is appropriate to turn first to supplementary rule 208 of the Supreme Court Civil Supplementary Rules 2014 (SA) which provides as follows.
The appropriate rate for the calculation of interest on pre-judgment economic loss under section 30C of the Supreme Court Act 1935 is a matter for determination by the Judge or Master in each case. As a guide only, and subject to any contrary legislative provision, the Court may calculate interest in such cases as follows—
(a)in respect of the period from 1 January to 30 June or part of that period in a year, the cash rate of interest last set by the Reserve Bank of Australia before that 1 January, plus 4%; and
(b)in respect of the period from 1 July to 31 December or part of that period in a year, the cash rate of interest last set by the Reserve Bank of Australia before that 1 July, plus 4%.
It should be noted that this rule only provides a guide and the rate remains a matter for determination by the Court in each case. If followed slavishly in this case, supplementary rule 208 would involve the identification of the Reserve Bank of Australia cash rate for each six month period during the overall period (in excess of eight and a half years) for which interest is to be calculated together with an attempt to calculate the proportion of the damages that accrued during each six month period.
The practice of the Court is to adopt a single interest rate, for the entire period, that fairly approximates an average of the individual rates for each six month period. The respondent has provided a table setting out the monthly cash rates set by the Reserve Bank of Australia for the period March 2011 to November 2017.[3] During the period from October 2011 (the month of publication) to November 2017, the cash rate started at 4.75 per cent, following which it steadily declined to 1.50 per cent in August 2016 where it remained until November 2017. We take judicial notice of the fact[4] that the cash rate remained at 1.50 per cent until May 2019, after which it steadily declined to 0.25 per cent as at 8 April 2020. By reference to the record of changes in the cash rate available on the Reserve Bank of Australia website, we have adopted 2.20 per cent as an approximate average of rates across the whole of the relevant period. To that is to be added four per cent, as suggested by supplementary rule 208. This results in an interest rate of 6.20 per cent across the period.
[3] Initially, the respondent put, but later resiled from, a submission that the period for pre-judgment interest should expire at the date of the trial judgment, 23 August 2016.
[4] By reference to the Reserve Bank of Australia website.
This interest rate of 6.20 per cent should be discounted to reflect the accrual of the economic loss over the period. We address the appropriate discount rate below after determining the period over which the interest should be calculated.
Non-economic loss damages
As far as non-economic loss is concerned, the High Court has held that an interest rate of four per cent is appropriate.[5] It is this rate that should be applied notwithstanding supplementary rule 208. Further, this interest rate or the resultant calculation should be discounted to reflect the accrual of the non-economic loss over the period. We address the appropriate discount rate below.
[5] MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, adopted in Cornes v The Ten Group Pty Ltd & Ors (No 2) [2011] SASC 141.
Period for pre-judgment interest
As far as the period for pre-judgment interest is concerned, typically interest will run until the date of judgment. From that time, the losing party will know what its final liability is; it is logical that post-judgment interest (usually at a higher rate to encourage prompt payment) will run from that date. Nevertheless, according to s 30C of the Supreme Court Act 1935, the period for pre-judgment interest is discretionary. In this case, the trial Judge did not award damages; rather the Full Court has done so not by way of review but in lieu of a determination at trial.
There is support in Chakravarti v Advertiser Newspapers Ltd[6] for the proposition that, following a successful appeal modifying an award of damages, interest should be awarded up to the date of that judgment for the new amount that should have been entered in the Court below. However, the circumstances of the present case raise considerations different from those in Chakravarti.
[6] (1998) 72 SASR 361.
In the present case, it is only as at the entry of this Court’s judgment assessing damages that the defendant is in a position to meet the award. To back date the award for pre-judgment interest purposes would lead to a situation where the respondent would be required to pay post-judgment interest at the higher rate over an appreciable period during which it had no realistic opportunity to discharge the judgment debt. In order to avoid this, the Court might consider directing that post-judgment interest is to run only from the date of this judgment on appeal. However, this would lead to a hiatus during which Ms Poniatowska would receive no interest at all. Neither outcome would be a just one. The interest rates proposed for pre-judgment interest are not ungenerous. In the circumstances, it is appropriate to order that pre-judgment interest run until the date of this judgment and that post-judgment interest run thereafter.
A practice is often adopted that the interest calculated for the whole period is halved to accommodate an assumed even rate of accrual over the entire period for which the damages are awarded.[7] However, in this case it is appropriate to discount the interest calculated for the whole period by only 40 per cent to reflect our view that more of the economic loss and the non-economic loss found to have been suffered by Ms Poniatowska accrued in the earlier part of the period as compared with the later part of the period.
[7] As far as defamation awards are concerned, see John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 143 per McHugh JA (with whom Kirby P agreed); McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270 at [8] per Rothman J; and Fisher v Channel Seven Sydney Pty Ltd (No 4) [2014] NSWSC 1616 at [109] per Rothman J.
Calculation
Interest at 4 per cent on the non-economic loss component of $200,000 over the approximately eight years, six and a half months from the date of first publication to the date of this judgment, reduced by 40 per cent (on account of accrual), amounts to approximately $41,200. Interest at 6.20 per cent on the economic loss component of $80,000 over the same period, reduced by 40 per cent (on account of accrual) amounts to approximately $25,500. The total of pre-judgment interest to be awarded is $66,700.
Post-judgment interest
Post-judgment interest is governed by s 114 of the Supreme Court Act 1935 which provides for a statutory entitlement; there is no need to make an order. The rate of interest is governed by supplementary rule 217. Out of an abundance of caution and given that we propose to award pre-judgment interest for the whole of the period up to the date of this judgment, we will exercise the power available to us to order that post-judgment interest is to be calculated from the date of this judgment.[8]
[8] See subsection 114(2)(a) of the Supreme Court Act 1935 (SA).
Interest on costs
Subrule 264(7) of the Supreme Court Civil Rules 2006 provides:
The Court may include in an award of costs an amount representing interest.
In opposition to Ms Poniatowska’s application for interest on costs, Channel Seven have submitted, inter alia,
42.It is not apparent, and there is no evidence that:
42.1 the appellant has paid any costs to her solicitors and counsel;
42.2 any liability on the part of the appellant to pay her solicitors’ costs has as yet been incurred at all;
42.3 the appellant has any liability to pay interest to her solicitors.
43.In light of that, there is a risk that if interest were to be awarded for the period sought by the appellant this could lead to a windfall gain, which should be avoided.
(Footnote omitted)
The discretion whether or not to award interest on costs is a broad one but one to be exercised judicially having regard to the relevant facts.[9] The determination of any entitlement to interest under this heading is likely to entail a factual enquiry best undertaken by a taxing Master. We are not in a position to rule on this aspect of the appellant’s application which is therefore refused. However, this does not preclude Ms Poniatowska from re-agitating the application before a Master upon an adjudication of her costs, if not otherwise agreed.
[9] Osborne v Kelly [1999] SASC 486, (1999) 75 SASR 392.
Costs
The remaining question which arises is the proper order which should be made for the costs of certain pre-trial applications, the trial and the appeal.
Costs of action
Ms Poniatowska seeks an order that the defendants pay her costs of the whole of the action on an indemnity basis, pursuant to s 38(2)(a) of the Defamation Act 2005 (SA) (the Defamation Act):
(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; …
…
Section 38(2)(a) may more readily be applied to cases in which the substantial issues are whether the publication is defamatory, whether it is made on a privileged occasion, or the quantum of the award of damages. Those issues generally require an evaluative judgment, or the exercise of a discretion, on facts of a narrow compass about which there is only a limited dispute.
On the other hand, cases in which there is a finely balanced defence of justification may require the resolution of strongly disputed facts, canvassing a wide range of factual allegations. Whether there has been an unreasonable failure to settle may be a vexed question in such cases. We acknowledge that, of course, the prospects of success, or risk of failure, of a claim or a defence may be factored into a negotiated settlement by formulating a discount factor and applying it to potential damages for the purposes of settlement negotiations. However, the point we make is that a formulation of that kind may be more difficult in the case of a defence of justification to a defamation claim.
The facts and issues in contention in this action present a paradigm case. Ms Poniatowska had pleaded guilty to obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code). Her ultimate acquittal was the result of a construction of s 135.2(1) of the Criminal Code that it did not impose a duty to disclose, and the failure of the Commonwealth to allege or contend that Ms Poniatowska was under a duty imposed by another law. At trial, Channel Seven presented a substantial body of evidence, which ranged over many years, included much confusing documentation and raised multiple subsidiary issues of fact, to prove the truth of the imputations. The Judge was persuaded by their case and made a number of generally adverse findings against Ms Poniatowska. This Court allowed the appeal because of the way in which the Judge addressed, or did not address, a number of intermediate questions of fact, and mixed law and fact. On a review of the evidence, this Court was not persuaded that Ms Poniatowska had acted dishonestly and found that Channel Seven had not proved its defence of justification.
In addition, in the present case there was a high degree of uncertainty concerning any likely award of damages for economic loss. This was reflected in very divergent submissions concerning economic loss both at trial and on the appeal when this Court came to assess damages.
It is convenient next to turn to the amounts claimed by Ms Poniatowska from time to time and the correspondence which passed between her and Channel Seven in an attempt to negotiate a settlement.
Ms Poniatowska’s statement of claim, filed on 7 May 2012, sought damages of $2.5 million plus interest and costs.
On 25 September 2013, Channel Seven’s solicitors offered to settle by paying the sum of $20,000 plus costs to be agreed or taxed.
On 30 October 2013, Ms Poniatowska’s solicitor asked Channel Seven to increase its offer, for reasons which, it must be acknowledged, were not particularly persuasive. On 18 December 2013, Channel Seven’s solicitors repeated their earlier offer, but intimated that they would be prepared to consider an all-inclusive figure if that were preferred. On 8 April 2014, Channel Seven’s solicitors offered to settle by paying the sum of $50,000 plus costs.
On 10 April 2014, shortly before the commencement of the trial, Ms Poniatowska’s solicitors wrote to Channel Seven’s solicitors offering to settle the matter for the sum of $200,000 inclusive of costs in full and final settlement. The letter asked that Channel Seven respond by 15 April 2014. Channel Seven did not respond.

In opening her case on 22 April 2014, Ms Poniatowska’s counsel sought damages of $750,000 plus costs.
Channel Seven’s offers were substantially less than the amount awarded by this Court, but as we have already observed it was reasonable to discount the potential award by reference to the evidence supporting the defence of justification. Given the complexity of the issues, we cannot say that the absence of a higher offer by Channel Seven was unreasonable.
Nor can we conclude that the non-acceptance of, or failure to enter into negotiations over, the offer of 10 April 2014 was unreasonable. First, the offer allowed very little time for consideration before the trial commenced. Secondly, in opening the trial, within a week of the offer being made, Ms Poniatowska’s counsel quantified damages at more than double the award we made. Thirdly, both parties shared the responsibility to resume settlement negotiations thereafter.
For these reasons, we do not find that Channel Seven acted unreasonably.
If we are wrong about that conclusion, we would in any event refrain from making an indemnity costs order in the interests of justice.
Channel Seven contend that certain adverse credit findings made by the Judge, which were unaffected by the decision of this Court on appeal, and what the Judge found to be Ms Poniatowska’s argumentative and non-responsive testimony, were also good reasons to deny her indemnity costs. We do not place significant weight on those considerations. Even though the Judge found that Ms Poniatowska’s manner of giving evidence added to the length of her cross‑examination, that prolongation of her testimony cannot be quantified. It has not been shown that the costs of the trial were so significantly increased as to render the application of s 38(2)(a) unjust.
Channel Seven contend that the defence of justification failed, on appeal, for reasons other than those advanced by Ms Poniatowska at trial. We do not accept that contention as it characterises Ms Poniatowska’s contentions at trial in an unduly narrow and technical manner. Although the reasons given by this Court were more elaborate, those reasons fell within the scope of the arguments advanced by Ms Poniatowska at trial and reiterated on appeal. Channel Seven carried the onus to prove the truth of the imputations and was therefore required to adduce evidence capable of doing so. For the reasons given in the substantive judgment on liability,[10] Channel Seven failed to do so.
[10] Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111.
The primary reason we consider that the interests of justice require the Court not to award indemnity costs even if Channel Seven had unreasonably failed to settle Ms Poniatowska’s action is that Channel Seven had reasonable grounds to believe their defence of justification enjoyed reasonable prospects of success.
It remains to consider whether Channel Seven should be ordered to pay Ms Poniatowska’s costs on an indemnity basis because the award of damages of $280,000 made in this Court bettered the offer to settle made by Ms Poniatowska in her letter of 10 April 2014. Ms Poniatowska cannot rely on r 188F of the Supreme Court Civil Rules 2006 (SA) because her offer was not a formal offer filed at court and in any event was made less than 21 days before the commencement of the trial. Ms Poniatowska relies instead on the principle articulated in Calderbank v Calderbank.[11] We decline to order indemnity costs for much the same reasons as we decline to make that order pursuant to s 38(2)(a) of the Defamation Act. It was not unreasonable of Channel Seven to decline to accept Ms Poniatowska’s letter of offer made in the week before trial. The letter was ambiguous as to whether the offer remained open after 15 April 2014. After Ms Poniatowska’s counsel opened on the damages she sought, Channel Seven were entitled assume that the offer of 15 April 2014 no longer stood. Finally, Channel Seven had reasonable grounds to believe that they had reasonable prospects of establishing their defence.
[11] [1975] 3 All ER 333.
For the above reasons, we will order that Channel Seven pay Ms Poniatowska’s costs of the trial on a party/party basis but subject to the following specific costs orders made against Ms Poniatowska:
·14 March 2013 – Ms Poniatowska was ordered to pay Channel Seven’s costs thrown away in relation to an amendment to file a third statement of claim.
·13 November 2013 – Channel Seven were awarded ‘their costs of and incidental to the argument on FDN 21 heard on 15 August 2013, but there otherwise be no order as to costs on FDN 21’.
It is necessary to elaborate a little on FDN 21 (the FDN 21 application). It was an application brought by Channel Seven for further discovery of documents, one category of which related to Ms Poniatowska’s Centrelink benefits. The application came before a Master on 18 July 2013 and was adjourned for argument to 15 August 2013. On that day, the issues with respect to most categories were resolved; however, the application was adjourned to 30 August 2013 to give Ms Poniatowska an opportunity to obtain documents from Centrelink. On 30 August 2013, Ms Poniatowska’s counsel, who had been instructed by a solicitor whom Ms Poniatowska had only recently engaged, sought an adjournment to consider Channel Seven’s FDN 21 application. The FDN 21 application was adjourned to 30 September 2013 and costs of the attendance were reserved. The application was again adjourned from time to time, with costs in the cause, until 13 November 2013.
It is clear therefore that the reservation of the costs of 30 August 2013 was dealt with by that part of the order made on 13 November 2013, which provided ‘otherwise no order as to costs on FDN 21’.
The costs of other directions hearings and other pre-trial matters were reserved from time to time. Channel Seven do not identify any reason why those costs should not now be Ms Poniatowska’s costs in the cause.
Costs of appeal
We turn to the question of the costs of the appeal. We reject Ms Poniatowska’s argument that s 38(2)(a) of the Defamation Act has any application to the costs of the appeal in accordance with existing authority in this, and other, States.[12]
[12] Cornes v Ten Group Pty Ltd (No 2) (2012) 114 SASR 106, [2012] SASCFC 106 at [11], [17]-[19] per Kourakis CJ, Gray and Blue JJ; Gacic v John Fairfax Publications Pty Ltd (No 2) [2014] NSWSC 738 at [74]-[76], [82]-[85] per Hall J; Lower Murray Urban and Rural Water Corporation v Di Masi (No 2) [2014] VSCA 133 at [6] per Warren CJ, Tate and Beach JJA.
The primary matter of contention between the parties concerns which party should bear the costs of Ms Poniatowska’s application to call further evidence on appeal in rebuttal of Channel Seven’s justification defence. It was unnecessary to, and this Court did not, decide that application because it found that, on the evidence adduced at trial, Channel Seven had failed to prove the truth of the imputations.
Argument concerning the further evidence proceeded over part of the days on 5 October 2017 and 6 October 2017. Examination of a proposed witness, Mr Cursaro, proceeded on the afternoon of 14 November 2017. There followed a deposition-style examination of Mr Cursaro at the office of Channel Seven’s solicitors on the afternoon of 23 November 2017.
We acknowledge that the correspondence which Ms Poniatowska sought to adduce was available to her solicitors during the trial and was included in briefs sent to her counsel. Nonetheless Ms Poniatowska sought to have the Centrelink correspondence put before the Court in support of her ground of appeal that justification had not been established, a ground on which she was ultimately successful. Whether or not to make a costs order in favour of one party or another on an issue which occupied a substantial part of a hearing but which has been left undecided is often problematic.
Channel Seven also seek a cost order in their favour with respect to their application for security for their costs of the appeal. In addition, Channel Seven seeks the costs of the preparation of a mortgage over Ms Poniatowska’s residence as security for the costs of the appeal. Channel Seven’s solicitors prepared the mortgage because Ms Poniatowska did not prepare a mortgage in acceptable form within the time allowed by a Judge in chambers. The Judge had intimated that, in the event that Channel Seven’s solicitors prepared the mortgage, the cost of the preparation would be the respondents’ costs of the appeal in any event, but that order was not made.
We acknowledge that Channel Seven’s application for costs was a discrete interlocutory issue on which Channel Seven succeeded. We also accept that Channel Seven was called on to prepare the mortgage only because of Ms Poniatowska’s ineffective attempts to do so.
On the other hand the security was sought by Channel Seven on the premise that they would succeed on appeal and to secure their costs if they were successful. However, Ms Poniatowska was successful on her appeal and obtained a substantial judgment in her favour. Objectively and in retrospect, the giving of security was a cost unnecessarily incurred other than to protect Channel Seven’s financial interests in the event that the appeal were dismissed.
It is possible to make different costs orders with respect to the issues which have been identified. That course is likely to result in further controversies. We have concluded that justice, and efficiency, is best served by taking a broad sword to these gordian knots. We make a single order that Channel Seven pay Ms Poniatowska 60 per cent of her costs.
Conclusion
We make the following further orders:
1.Judgment be granted in favour of the plaintiff against the defendants for $346,700 inclusive of pre-judgment interest calculated to and including 12 May 2020.
2.Post-judgment interest is to run from and including 13 May 2020.
3.The defendants are to pay the plaintiff’s costs of action on a party/party basis, except the costs that are subject of the orders made on 14 March 2013 and 13 November 2013.
4.The respondents are to pay 60 per cent of the appellant’s costs of the appeal.