Porter v John Fairfax Publications - [2001] NSWSC 680

CITATION: Porter v John Fairfax Publications [2001] NSWSC 680

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11259/00

HEARING DATE(S): 27/11/00;30/11/00;15/2/01;16/2/01;10/8/01

JUDGMENT DATE:
9 August 2001

PARTIES :

Stewart Porter v John Fairfax Publications Pty Ltd

JUDGMENT OF: O'Keefe J

LOWER COURT
JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 8283/95

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Mr R Campbell/Mr A A Robins - For plaintiff
Mr H Nicholas/Mr K Andronos - For defendant

SOLICITORS:
Colquhoun & Colquhoun
Balmain - For plaintiff
Freehill Hollingdale & Page
sydney - For Defendant

CATCHWORDS: Indemnity costs - Contingency premium may be included - Limited application of District Court Practice Note 42 - Costs payable as a result of an order by a Court or Tribunal does not include costs payable under a deed - Successful outcome of the matter - Unreasonable amount and unreasonably incurred are questions of fact

LEGISLATION CITED: Legal Profession Act 1987, ss.186;187;189;208H;
District Court Act 1973, s.148B
District Court Rules 1973
District Court Practice Note 42

CASES CITED: EMI Records Limited v Ian Cameron Wallace Limited & Anor (1983) 1 ch 59
Degmam Pty Limited (In Liq) v Wright(No.2) (1983) 2 NSWLR 354
Madden v New South Wales Insurance Ministerial Corporation ((1999) NSWSC 196, unreported at par 15, Master Malpass 15 march 1999)

DECISION: Judgment for the plaintiff for $223,982. The defendant is to pay the plaintiff's costs for the hearing, including two counsel.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: O’KEEFE J

DATE: 9 August 2001

No: 11259/00 - STEWART PORTER v JOHN FAIRFAX PUBLICATIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR: By summons filed on 24 May 2000 and amended on 17 July 2000, Stewart Porter (the plaintiff) sought:

(i) a declaration that John Fairfax Publications Pty Limited (the defendant) is liable to pay the plaintiff’s costs incurred in certain District Court proceedings on an indemnity basis;

(ii) an order that costs of those proceedings be referred for assessment on an indemnity basis pursuant to the Legal Profession Act 1987; and

2 On 17 July 2000 there was a consent declaration made that the defendant was liable to pay the plaintiff’s costs of the proceedings in the District Court of New South Wales No. 8283 of 1995 on an indemnity basis together with an order referring the assessment of the plaintiff’s costs of the District Court proceedings on an indemnity basis to a nominated assessor for inquiry and report pursuant to Part 72 Rule 2(1) of the Rules of the Supreme Court.

3 The history of the matter is that the plaintiff sued the defendant in the District Court claiming damages for the publication of two defamations. The defamations were said to have been published in editions of the Sun Herald of 23 July and 8 October, 1995. The first defamation arose out of a statement in the publication of 23 July 1995 that the plaintiff…

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 Porter v John Fairfax Publications

Details

AGLC: Porter v John Fairfax Publications [2001] NSWSC 680
Case: [2001] NSWSC 680
Decision Date: 9 August 2001

CaseChat Overview and Summary

The case of Porter v John Fairfax Publications involves a dispute between two parties regarding indemnity costs. The matter was heard in the Supreme Court of New South Wales. The central issue was whether a contingency premium could be included in the indemnity costs and the extent to which the District Court Practice Note 42 applied. Additionally, the court had to determine if costs payable as a result of an order by a Court or Tribunal include costs payable under a deed. The case hinged on whether the successful outcome of the matter justified an unreasonable amount or if the costs were unreasonably incurred.

The court examined whether the contingency premium, which is a charge for the risk of non-payment, could be included in indemnity costs. It was established that the premium could be included, but its application was limited. The court also considered the scope of the District Court Practice Note 42, which provides guidance on indemnity costs. The court found that the note's application was limited and did not extend to all types of costs. The court further clarified that costs payable as a result of an order by a Court or Tribunal do not include costs payable under a deed, unless specifically provided for in the deed. The court determined that the questions of whether an amount was unreasonable and whether costs were unreasonably incurred are questions of fact, to be decided based on the specific circumstances of each case.

The court concluded that the contingency premium could be included in indemnity costs, but its inclusion was subject to specific limitations. The application of the District Court Practice Note 42 was also limited, and did not apply to all types of costs. The court held that costs payable under a deed were not included in the definition of costs payable as a result of an order by a Court or Tribunal. The court emphasised that the determination of whether an amount was unreasonable and whether costs were unreasonably incurred depended on the facts of each individual case. Ultimately, the court's decision provided clarity on the scope and application of indemnity costs in this context, and established important principles for future cases involving similar issues.

Orders