Rowan v Cornwall & Ors (No 6) No. Scciv-90-1481
[2002] SASC 234
•12 July 2002
ROWAN v CORNWALL (NO 6)
[2002] SASC 234
Civil
DEBELLE J. These reasons relate to the orders for interest and costs.
The damages awarded to the plaintiff amount to $340,425.10. It comprises the following:
Damages for injury to reputation etc $225,000.00 Damages for misfeasance 25,000.00 Economic Loss - Loss of earnings 1988 to 1989 44,919.00 - Compensation for reduced earnings Oct - Dec 1989 900.00 - Loss of income while establishing private practice 10,000.00 305,819.00 Medical and other fees
20,950.10
Pharmaceutical costs
650.00
Removal costs
13,006.00
Total
$340,425.10
As is apparent from the reasons for judgment, the defendants who have been found liable to the plaintiff are not jointly and severally liable for the total award but must contribute to different aspects of it.
Interest
There will be three separate orders as to damages. The first will be an order that the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth, and thirteenth defendants are jointly and severally liable in the amount of $259,606.10, which is a total of the following awards.
Injury to reputation
$225,000.00
Medical and other expenses
20,950.10
Pharmaceutical costs
650.00
Removal costs
13,006.00
Total
$259,606.10
This liability represents their joint and several liability for the damage to the plaintiff’s reputation and the consequential losses.
The same defendants are jointly and severally liable for interest on that award. Applying the principles expressed in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 and Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 380, the rate of interest on that part of the award which represents loss to reputation will be four per cent. The balance of the award represents expenses incurred by the plaintiff in consequence of the loss and damage she suffered. She is entitled to a commercial rate of interest on that part of her loss. Interest rates over that period have fluctuated. An average of the rates is approximately 10 per cent per annum. I adopt that rate for those losses.
The parties are not agreed on the period over which interest should be incurred. The plaintiff contends that the period for the damages for loss of reputation should be 14 years and 11 months – the period between the date of publication and judgment. As for the balance of the loss, the plaintiff contends for a period of 12 years and seven months – an average of the period between the date when these losses were incurred and judgment. All defendants except the television companies agree with those periods. I do not accept the submissions of the television companies. In all the circumstances, it is reasonable to allow a period of 14 years and 11 months on the assessment of $225,000. That produces a total for an award of interest of $134,253. For the balance of the award, the period over which interest should be calculated should be 12 years and seven months. That realises a sum of $43,545. As some part of the latter loss was incurred relatively recently, I round down the total award of interest to $175,000.
The second order as to damages is that the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable for the economic loss sustained by the plaintiff. That loss totals $55,819 being
Loss of earnings 1988-1999
$44,919.00
Compensation for reduced earnings October - December 1989
900.00
Loss of income while establishing private practice
10,000.00
Total
$55,819.00
Those defendants are also liable for interest on that award. The parties affected agree that the period for which interest should run is 12 years and seven months and that the rate of interest should be 10 per cent per annum. The amount to be awarded for interest is therefore $70,235.
The third order is that the defendant Cornwall pay exemplary damages of $25,000. That award does not attract interest: s 30C(4)(ab) of the Supreme Court Act 1935.
Costs
The plaintiff has succeeded and, subject to the observations in the succeeding paragraphs, is entitled to her costs. She seeks an award of costs on an indemnity basis. I will not recite all of the grounds on which she relies. It is sufficient to state that there is no ground which justifies an order for indemnity costs. She does not fall within any of the grounds identified in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. Instead, she is entitled to an order for party and party costs.
In dealing with the other issues as to costs, a broad-axe approach must be taken. It is simply not possible, nor appropriate, to determine the precise amount of costs to be awarded to any one party.
The plaintiff failed in her action for conspiracy. The defendants to that claim contend that the costs which the plaintiff will receive should be reduced to reflect that fact. In addition, they seek their own costs of successfully defending that claim. I am disinclined to accept the contentions of these defendants because each of the plaintiff’s separate causes of action essentially involved the same factual matrix. The plaintiff was seeking to restore her reputation. She had to prove many facts. The issues of fact were so intertwined and connected that there is little justification for depriving her of any portion of her costs. Furthermore, I respectfully agree with the following remarks of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16.
“[T]rials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.”
Subject to what I am about to say, that principle applies here. The plaintiff amended her claim to add the cause of action in conspiracy on 29 June 2000 at a relatively late stage before the trial. The pleadings show that the overwhelming number of facts relied on in support of that claim were the same facts as related to the causes of action in defamation and misfeasance in a public office. However, the plaintiff relied on other facts and, in particular, a good deal of correspondence which did prolong this trial a little. For the reasons already expressed, I was initially not inclined to make any reduction in her costs to allow for the failure to establish the tort of conspiracy. However, I think the interests of justice will be served if a deduction of five per cent of her costs incurred since 29 June 2000 is made. There is no justification for allowing any costs to the defendants to that cause of action.
The plaintiff also failed in her action for negligence. For the reasons already expressed, there is no basis for making any reduction in the plaintiff’s costs or awarding any costs to a successful defendant other than the defendant Ryan. Ms Ryan was in the witness box for one day. The issues concerning her did not unduly lengthen the trial or add any great burden to the pre-trial procedures. Other relevant factors are that the factual issues relating to the claim against the defendant Ryan were so closely connected with and formed part of the general matrix of facts and that Ms Ryan was represented by the same solicitors and same counsel, Mr Stanley, as represented Ms King and the Commonwealth who failed. For those reasons, I think that a fair allowance for Ms Ryan’s costs is counsel fees to Mr Stanley for two days. In addition, she is entitled to her reasonable costs of travelling to give evidence.
At a very late stage in the action, after all the evidence had been heard, the plaintiff withdrew her claim against Mr Sumner for abuse of legal process. Mr Sumner seeks an order for costs. Again, most of the facts concerning this claim formed part of the overall matrix of fact. There was little which caused additional pre-trial preparation or which added to the length of the trial. Mr Sumner was in the witness box for part of two days during the trial. His solicitors and counsel were the same solicitors and counsel who represented Dr Cornwall, the Review Committee defendants other than Ms King, and the State of South Australia, all of whom were unsuccessful defendants. In all the circumstances, the interests of justice are served if he recovers as his costs an amount equal to two days counsel fees for Ms Panagiotidis, his counsel.
To the extent that she is liable to pay the costs of the defendants Ryan and Sumner, the plaintiff seeks a Bullock or Sanderson order. There is no basis for such an order: Gould v Vaggelas (1985) 157 CLR 215 at 229 – 231, 246 – 247 and 260.
The Content of the Plaintiff’s Costs
The plaintiff conducted the overwhelming portion of the trial unassisted by counsel. However, solicitors and counsel acted for her for a few days at the end of the trial. Before and after the trial she was also represented by solicitors and counsel. She is entitled to recover the costs of all representation by counsel and solicitors on a party and party basis.
For the reasons expressed in Rowan v Cornwall (No 5) [2002] SASC 160, the plaintiff was forced to reside in Melbourne. She has had to incur considerable expense in travelling to and from Melbourne during the trial and at other stages before and after the trial. She had claimed the cost of airfares as damages. In Rowan v Cornwall (No 5) I held that she was entitled to be reimbursed for that cost, not as damages but as the costs of the action. Some defendants submitted that the plaintiff was not entitled to be reimbursed for any costs incurred by reason of the fact that she had come to Adelaide from another State. I disagree. In the particular circumstances of this case, the plaintiff has had no alternative but to incur these airfares and other costs because she resides in Melbourne. If she is not entitled to be reimbursed for them as costs, she is entitled to recover them as damages. In other words, the conduct of the defendants who failed has caused the plaintiff to change her place of residence to Victoria. Those defendants cannot, therefore, now assert that she is not entitled to recover costs incurred by reason of the fact that she had to prosecute this action in South Australia. Those defendants are, therefore, liable to reimburse her for all costs reasonably incurred in coming to Adelaide to prosecute this action, either as costs or as damages. I think the proper basis is as costs. As was noted in Cachia v Hanes (1994) 179 CLR 403 at 414, an award of costs is intended to reimburse the litigant for costs actually incurred. The cost of airfares is a cost incurred in the conduct of this litigation: see also Harbin v Gordon [1914] 2 KB 577. To the extent that the plaintiff may have incurred costs in obtaining accommodation in Adelaide, she is entitled to be reimbursed for that also.
The plaintiff also sought to recover costs for clerical assistance. It was obvious that during the trial the plaintiff was receiving considerable clerical assistance from a number of people including her niece, her friends and former colleagues at the Christies Beach Women’s Shelter, Ms McSkimming and Ms Lachlan. The greater part of that assistance was rendered by her niece. It is not clear whether the plaintiff has incurred any actual expense for the assistance rendered by these people. It appears that the assistance was given voluntarily. There is no reasonable basis for allowing the plaintiff to recover costs for this assistance. I do not think that there is any basis for allowing costs on the basis of the principles expressed in Griffiths v Kerkemeyer (1977) 139 CLR 161. Just as a plaintiff is not entitled to be compensated for her time in preparing and conducting her case: Cachia v Hanes (supra), so too a plaintiff is not entitled for the cost of clerical assistance voluntarily provided by friends or relatives. However, if the plaintiff has incurred clerical costs in having material typed or copied by a person or an organisation such as a secretarial agency or the like, she is entitled to recover that out of pocket expense.
Apportionment of Liability as to Costs
The ABC and TVB submit that they took a lesser part in this trial and so should be liable for a lesser portion of the costs recovered by the plaintiff. It is appropriate to view the defendants as four groups or sets, the State defendants, the Commonwealth defendants, the ABC, and TVB. I am satisfied that TVB should pay a smaller portion of the plaintiff’s costs than the other defendants. It took a minimal part in this trial. The issues against it were fairly narrowly confined. However, I do not think there is any reasonable basis for ordering that the ABC bear a lesser portion than the other defendants, particularly as the ABC relied on the defence of justification and so had to be present for the greater part of this trial. Furthermore, as the plaintiff is not recovering legal fees for almost the whole of this lengthy trial, the costs of the trial are relatively small. There is no reason why the ABC should not share the costs equally with the defendants other than TVB. For all of these reasons, I will, in a moment, order that the defendants other than Network Ten (Adelaide) Pty Ltd bear 85 per cent of the plaintiff’s costs which each group of defendants shall bear in equal shares. The defendant Network Ten (Adelaide) Pty Ltd shall pay 15 per cent of the plaintiff’s costs.
Orders
For all of these reasons, there will be orders as follows:
1That the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants are jointly and severally liable to pay to the plaintiff the sum of $259,606.10 damages.
2That the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants are jointly and severally liable to pay to the plaintiff the sum of $175,000.00 interest on the amount of $259,606.10 referred to in paragraph 1 of this order.
3That the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable to pay the plaintiff the sum of $55,819.00 damages.
4That the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable to pay the plaintiff the sum of $70,235.00 interest on the amount of $55,819.00 referred to in paragraph 3 of this order.
5 That the first defendant pay the sum of $25,000.00 damages to the plaintiff.
6That the plaintiff’s action against the sixth and eleventh defendants stand dismissed.
7Subject to paragraphs 8 and 9 of this order, that the defendants other than the sixth and eleventh pay the plaintiff the whole of her party and party costs of this action to 29 June 2000 and 95 per cent of those costs thereafter.
8That the defendants other than Network Ten (Adelaide) Pty Ltd shall pay 85 per cent of the plaintiff’s costs which they shall bear in equal shares.
9That the defendant Network Ten (Adelaide) Pty Ltd shall pay 15 per cent of the plaintiff’s costs.
10That the plaintiff’s costs shall include her reasonable out of pocket expenses for travel and accommodation for the purpose of conducting this litigation.
11That the plaintiff shall pay as the costs of the defendant Sumner an amount equal to counsel fees for two days for Ms Panagiotidis.
12That the plaintiff shall pay as the costs of the defendant Ryan an amount equal to counsel fees for two days for Mr Stanley and the defendant Ryan’s reasonable costs of travelling and accommodation to give evidence.
13That in those instances where an order has been made “Costs reserved” the order shall be deemed to be costs in the cause.
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