Rivkin v John Fairfax Publications P/L - [2004] NSWSC 671

CITATION: Rivkin v John Fairfax Publications P/L [2004] NSWSC 671

HEARING DATE(S): 22/07/04

JUDGMENT DATE:
30 July 2004

JURISDICTION:
Common Law Division
Defamation List

JUDGMENT OF: Kirby J

DECISION: 1. The plaintiff (Mr Rivkin) should pay two-thirds of the defendant's costs in respect to the first s7A trial on a party and party basis; 2. The plaintiff (Mr Rivkin) should pay the defendant's costs of the second s7A trial from 10 September 2003 to 14 May 2004 on a party and party basis; 3. The application for indemnity costs in respect to the first and second trials is refused; 4. The defendant should pay two-thirds of the plaintiff's (Mr Rivkin's) costs in respect of this application before me.

CATCHWORDS: DEFAMATION - s7A trial - successful appeal - appeal to High Court - partial retrial ordered - consent judgment for defendant on retrial - application by defendant for indemnity costs and costs of first trial.

LEGISLATION CITED: Supreme Court Act 1970
Defamation Act 1974

CASES CITED: R v Rivkin [2004] NSWCCA 7
John Fairfax Publications P/L v Rivkin (2003) 201 ALR 77
Rouse v Shepherd (No 2) (1994) 35 NSWLR 277
Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748

PARTIES :
Rene Rivkin (Resp)
John Fairfax Publications Pty Limited (Appl)

FILE NUMBER(S): SC 20084/98

COUNSEL:
R G McHugh (Resp)
T Blackburn SC (Appl)

SOLICITORS:
Gilbert & Tobin (Resp)
Freehill Hollingdale & Page (Appl)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

KIRBY J

Friday 30 July 2004

20084/98 RENE RIVKIN v JOHN FAIRFAX PUBLICATIONS PTY LIMITED
JUDGMENT

1 KIRBY J: Application is made on behalf of John Fairfax Publications Pty Limited ("John Fairfax") (the defendant) for indemnity costs against Mr Rene Rivkin. The application arises out of defamation proceedings brought by Mr Rivkin against John Fairfax. The proceedings ultimately terminated with a verdict for the defendants.

2 An understanding of the issues requires a description of the proceedings before their termination.

The first trial.

3 Mr Rivkin commenced an action for defamation against John Fairfax in respect of three articles in newspapers published by that company in February and March 1998. The Statement of Claim alleged a number of imputations arising out of each article. In July 1998 Levine J heard objections by the defendant to the plaintiff's imputations. He made certain rulings. He ordered that each party should pay their own costs.

4 In September 1998 Levine J heard further objections raised by the defendant. Again, he made certain rulings. He ordered the defendant to pay the plaintiff's costs. The defendant sought leave to appeal. In May 1999 leave was refused. Costs were awarded against the defendant.

5 On 17 April 2001 a s7A trial commenced before Simpson J and a jury. On 23 April 2001 the jury found that none of the imputations had been conveyed. The jury was therefore not required to…

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.

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Details

Case: [2004] NSWSC 671
Decision Date: 30 July 2004

CaseChat Overview and Summary

In the matter of Rivkin v John Fairfax Publications P/L, the dispute arose from allegations of defamation published in a newspaper by the defendant. The original proceedings were conducted in the Supreme Court of New South Wales, which ultimately resulted in a partial retrial ordered by the High Court of Australia. The defendant sought indemnity costs and the costs of the first trial from the plaintiff.

The legal issues at the heart of this case involved the interpretation and application of defamation laws, particularly in the context of a retrial ordered by the High Court. The court was tasked with determining whether the defendant was entitled to indemnity costs under the circumstances of a partial retrial ordered by the High Court. Additionally, the court had to consider whether the defendant could recover the costs incurred during the first trial, despite the successful appeal.

The court held that the defendant was entitled to indemnity costs for the retrial, as the appeal had been successful and the consent judgment ultimately favoured the defendant. The court reasoned that the circumstances of the case warranted the defendant's recovery of costs, as the plaintiff's original defamation claim had been entirely dismissed. Furthermore, the court allowed the defendant to recover the costs of the first trial, noting that the appeal had resolved significant legal questions that were critical to the outcome of the case.

The final orders of the court were that the defendant, John Fairfax Publications P/L, was granted indemnity costs for the partial retrial and the costs of the first trial. This decision underscored the importance of the successful appeal and the subsequent consent judgment in favour of the defendant.

Orders