Rothe v Scott (No. 5)

Case [2016] NSWDC 225



District Court

New South Wales

Case Name: 

Rothe v Scott (No. 5)

Medium Neutral Citation: 

[2016] NSWDC 225

Hearing Date(s): 

22 September 2016

Date of Orders:

22 September 2016

Decision Date: 

22 September 2016

Jurisdiction: 

Civil

Before: 

Gibson DCJ

Decision: 

(1)   The plaintiff is awarded interest on costs at 3% from 12 March 2014, making a total of $6,264 and increasing the judgment sum to $156,264.
(2) The defendant is to pay the plaintiff’s costs of these proceedings on an indemnity basis pursuant to s 40(2)(a) of the Defamation Act 2005 (NSW).
(3) The plaintiff is entitled to an order for interest on those costs at the prescribed rate pursuant to s 101 of the Civil Procedure Act 2005.

Catchwords: 

TORT – defamation – judgment for plaintiff for $150,000 – applications for interest on judgment, indemnity costs and interest on costs – no issue of principle

Legislation Cited: 

Civil Procedure Act 2005 (NSW) ss 21, 100, 101
Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW)
Defamation Act 2005 (NSW) s 40

Cases Cited: 

Cerrutti v Crestside Pty Ltd [2016] 1 Qd R 89
Davis v Nationwide News [2008] NSWSC 946
Doppstadt Australia v Lovick & Son Developments [2014] NSWCA 158
Grattan v Porter [2016] QDC 202
John Fairfax & Sons v Kelly (1987) 8 NSWLR 131
Leichhardt Municipal Council v Green [2004] NSWCA 341
MBP (SA) Ltd v Gogic (1991) 171 CLR 657
McGaw v Channel Seven Sydney [2006] NSWSC 1270
Polias v Ryan (No 2) [2015] NSWSC 1
Rothe v Scott (No. 4) [2016] NSWDC 160

Texts Cited: 

-

Category: 

Costs

Parties: 

Plaintiff: Kenneth Rothe
Defendant: David Scott

Representation: 

Counsel:
Plaintiff: Mr C J Dibb
Defendant: Mr D Scott (in person)
 
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Mr D Scott (in person)

File Number(s): 

2015/74837

Publication Restriction: 

None

JUDGMENT

  1. In Rothe v Scott (No. 4) [2016] NSWDC 160, the plaintiff was awarded $150,000 damages following publication of grave allegations about the plaintiff on Facebook. The plaintiff now brings applications for:

    (a)Interest on the damages awarded;

    (b)Costs on an indemnity basis; and

    (c)Interest on costs.

  2. These are my reasons for making the orders sought by the plaintiff.

Interest on the damages awarded

  1. The plaintiff claims pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). The entitlement of a plaintiff to claim interest on defamation damages is of long standing (John Fairfax & Sons v Kelly (1987) 8 NSWLR 131) and while s 100, by use of the word “may”, conveys discretion, interest is almost invariably awarded, as Applegarth JA (setting aside a refusal by the first instance judge to award interest) explains in Cerrutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [93] – [102].

  2. The appropriate rate for non-economic loss has been accepted as being 4%: MBP (SA) Ltd v Gogic (1991) 171 CLR 657. Awards of 4% in defamation are rare, as the 4% figure is reduced to take into account that the damage has been…

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AGLC
Rothe v Scott (No. 5) [2016] NSWDC 225
Case
[2016] NSWDC 225
Decision Date

CaseChat Overview and Summary

Rothe v Scott (No. 5) involved a defamation case where the plaintiff, Rothe, sought damages against the defendant, Scott, who had published defamatory statements about Rothe. The plaintiff was awarded $150,000 in damages. Following the judgment, Rothe applied for interest on the judgment debt, indemnity costs, and interest on those costs. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the plaintiff was entitled to interest on the judgment debt and whether the defendant was liable for indemnity costs. The court also had to determine the applicable rate of interest on the costs and whether the prescribed rate applied under the Civil Procedure Act 2005 was appropriate.

The court found that Rothe was entitled to interest on the judgment sum at the rate of 3% from the date of the judgment until the date of the order, amounting to $6,264. This increased the total judgment sum to $156,264. The court further ruled that Scott was liable for indemnity costs as per section 40(2)(a) of the Defamation Act 2005. Additionally, Rothe was entitled to interest on those costs at the prescribed rate as per section 101 of the Civil Procedure Act 2005.

The court made three orders. First, it awarded Rothe interest on the judgment sum at 3%, increasing the total amount to $156,264. Second, it ordered Scott to pay Rothe’s costs on an indemnity basis. Finally, it granted Rothe an order for interest on the indemnity costs at the prescribed rate.

Orders

Orders of the court

(1) The plaintiff is awarded interest on costs at 3% from 12 March 2014, making a total of $6,264 and increasing the judgment sum to $156,264.

(2) The defendant is to pay the plaintiff’s costs of these proceedings on an indemnity basis pursuant to s 40(2)(a) of the Defamation Act 2005 (NSW).

(3) The plaintiff is entitled to an order for interest on those costs at the prescribed rate pursuant to s 101 of the Civil Procedure Act 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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