Rosevear v Burr
[1989] TASSC 108
•14 August 1989
Serial No. B30/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Rosevear v Burr [1989] TASSC 108; B30/1989
PARTIES: ROSEVEAR
v
BURR
DAVIES BROTHERS LIMITED
FILE NO: 7/1988
DELIVERED ON: 14 August 1989
JUDGMENT OF: Crawford J
Judgment Number: B30/1989
Number of paragraphs: 13
Serial No B30/1989
File No B7/1988
ROSEVEAR v BURR AND DAVIES BROTHERS LIMITED
REASONS FOR JUDGMENT CRAWFORD J
14 August 1989
Appropriate orders for costs need to be made.
On 13 July, the eighth day of the trial, the plaintiff obtained by consent an order amending paragraph 6 of the statement of claim by deleting the allegation that the first defendant caused to be published the words contained in the article in the Sunday Tasmanian. A consequential amendment was also made to paragraph 11(b). I reserved the question of costs. The effect of the amendment was to render redundant paragraphs 16, 17, 18 and 19 of the amended defence of the first defendant. It is appropriate that the first defendant's costs of and incidental to pleading to paragraph 6 of the statement of claim and thrown away as a result of the amendment should be paid by the plaintiff and it will be ordered accordingly.
The case of the plaintiff against the first defendant was, both before and after those amendments, that by words spoken to a journalist the first defendant published defamatory words of and concerning her. It was claimed that the damages for such defamatory publication should reflect the repetition of the words which occurred in the Sunday Tasmanian. The plaintiff also sued the first defendant for damages for defamation arising out of him sending by post copies of the Sunday Tasmanian article, containing the offending words, to 87 specified persons. The first defendant admitted making the respective publications. He denied that each of the three imputations alleged by the plaintiff to flow from the offending words were there. The jury found that two of those imputations were made out by the plaintiff. The first defendant also denied that any of those imputations were defamatory of the plaintiff. The jury found that the two imputations made out were defamatory of her. Ignoring the paragraphs of his amended defence which were made redundant by the plaintiff's amendments, the first defendant claimed five defences to the first cause of action, that is the oral publication of the words to the journalist. Four of those defences were that the publication was made on an occasion of qualified privilege. One of them was abandoned after 5½ days of the trial because the evidence did not substantiate it. Two of them were ruled by me not to be available as defences. The remaining defence of qualified privilege succeeded with the jury and resulted in a successful defence of the plaintiff's claim based on the first cause of action. The fifth defence to that cause of action was one of truth and public benefit. It failed with the jury.
The first defendant also raised five defences to the cause of action based on the second publication made by him, that is the circularizing of copies of the offending newspaper article to 87 persons. Four of those defences claimed qualified privilege and the fifth claimed truth and public benefit. One of the qualified privilege defences was similarly abandoned after 5½ days of the trial. One was ruled by me not to be available as a defence. The other two defences of qualified privilege were ruled by me to be available as to 76 and 78 respectively of the recipients of copies of the offending article but not as to the remaining 11 and 9 recipients respectively. In so far as those two defences were left to the jury, the first defendant succeeded on the issue of good faith and as a result the first defendant successfully defended the claim in so far as it was based on publication to 78 of the recipients. In respect of the publication to the remaining 9 recipients damages were assessed against the first defendant in the sum of $900. The fifth defence, of truth and public benefit, failed with the jury.
In its defence the second defendant admitted the imputations alleged by the plaintiff and that the publication made by it in the Sunday Tasmanian was defamatory of her. It strove only to defend the question of liability on one ground of qualified privilege. I ruled on the afternoon of the eighth day of the trial that the occasion was not one of qualified privilege. The second defendant was thereby stripped of any defence and it remained only for the jury to assess damages against it, which resulted in an award of $8,100.
The trial extended over eleven sitting days, the tenth of which lasted until 10.15pm to receive the verdict of the jury in relation to the question of the liability of the first defendant.
I turn to consider what order for costs ought to be made against the second defendant. The evidence took about five days to hear. Of that time only about two/thirds of a day was taken up by evidence called by the second defendant and its counsel's opening address and cross–examination of witnesses. Legal arguments were put by counsel for the plaintiff and the second defendant at various stages of the trial, relevant to the issues against the second defendant, for a total of about two/thirds of a day. Further time can also be attributed to the claim against the second defendant. Its counsel's address to the jury and its share of the time when I was summing up to the jury and when the jury was considering its verdict as to damages took about one/third of a day. In addition it seems to me that the second defendant should have allocated to its part in the trial some share of other time, including but not limited to the time it took to present the plaintiff's case. Her counsel's opening address and closing address as to damages, and obviously her own evidence–in–chief, related to the case against the second defendant. Doing the best I can I decide that the second defendant should pay 20% of the plaintiff's costs of the trial, 80% of the time of the trial being apportionable to the issues between the plaintiff and the first defendant. As against the second defendant the plaintiff should also have her costs of the action in so far as they relate to her claim against it.
I next turn to the question of costs between the plaintiff and the first defendant. As I have said it seems that about 80% of the time[i] taken at the trial related to the issues between them and not to issues involving the second defendant. Over half of five days of evidence went to the defences of truth and public benefit, which defences the first defendant lost. But some of that evidence also went to the question of malice which was relevant to the defences of qualified privilege, particularly whether what he published was believed by him to be true, and although he failed with some of those defences he did succeed with them to the extent that he defeated the first cause of action and partly defeated the second cause of action against him. There were about 2½ days of legal argument concerning his defences of qualified privilege and the honours were about evenly split so far as success on the argument was concerned.
The equivalent of about three sitting days (taking into account the day upon which the court sat until 10.15pm) was taken up by closing addresses to the jury and waiting for and then receiving its verdict on the question of liability between the plaintiff and the first defendant, the verdict resulting in a win for the first defendant in respect of the first cause of action and a loss (although not a complete loss) in respect of the second. Time was then taken up in connection with the assessment of damages against the first defendant.
I have little doubt that at the outset of the trial the plaintiff was looking to an award of more than $5000 damages, but because of her losses in respect of liability the eventual award was one of only $900.
An action for up to $5000 damages may be instituted in the Court of Requests. In circumstances where the amount recovered in this court is a lesser sum, section 13(1) of the Supreme Court Civil Procedure Act 1932 provides that notwithstanding such a recovery the court may make an order allowing the plaintiff the costs of the action. Subsection (2A) requires the court to take into account all the circumstances of the case, including (without limiting the generality of the subsection):—
(a)the sum sought to be recovered (no amount was stated in the writ or statement of claim), and
(b)the sum recovered.
I do not consider it reasonable to suggest that the plaintiff should have commenced her action against the first defendant in the Court of Requests and her action against the second defendant in this court. It was reasonable that she brought both claims as part of the same action tin this court. But at the same time it is also reasonable and proper to take into account when considering the question of costs that her eventual success in her action against the first defendant was so small. Taking into account also that he achieved successes but at the same time lost a number of defences, some of which substantially lengthened the trial, and the trial did result in a verdict against him to some extent, this seems to me to be an appropriate case where no order for costs should be made in favour of either of them, and in this regard I am referring not only to the costs of the trial but the general costs of the action between them. In the exercise of my discretion I consider it just and equitable that no order for costs whatever should be made between them.
Accordingly there will be no order for costs in favour of the plaintiff against the first defendant and no order for costs in favour of the first defendant against the plaintiff. It will be ordered that the second defendant pay the plaintiff's taxed costs of her claim against the second defendant, other than of the trial, and also pay 20% of the plaintiff's taxed costs of the trial. There will also be an order for costs in the terms indicated in the second paragraph of this judgment.
tasInLaw edit: The judgment has "time time".
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