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Sands v Channel Seven Adelaide Pty Ltd (No 2)

Sands v Channel Seven Adelaide Pty Ltd (No 2)

Case [2009] SASC 365 25 November 2009

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR (No 2)
[2009] SASC 365
Judgment of The Honourable Justice Bleby
25 November 2009
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - OFFER OF COMPROMISE MADE
Application for indemnity costs by successful defendants - plaintiff's claim in defamation against both defendants dismissed - consideration of effect of informal offers of settlement made by defendants - whether plaintiff's case so weak that he ought to have known he had no chance of success.
Costs awarded in favour of defendants on party and party basis - plaintiff's refusal of offers not imprudent or unreasonable - plaintiff's case against each defendant was not objectively so weak as to justify indemnity costs.

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES
Whether costs in favour of first defendant should be limited - plaintiff succeeded on some issues - first defendat's successful defence of justification not formulated until action had been on foot for almost four years - first defendant entitled to its costs without any reduction for these matters.

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - CO-DEFENDANTS
Whether costs against second defendant should be limited - trials of claims against both defendants ordered to be heard together, over objection from plaintiff - evidence relating to first defendant's defence of justification occupied the majority of the time at trial - whether second defendant's representation excessive - second defendant entitled to its costs without any reduction for these matters.
Supreme Court Rules 1987 (SA) r 40; Supreme Court Civil Rules 2006 (SA) r 8, r 187, r 188, r 263, referred to.
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425, not followed.
Morris v McEwen (2005) 92 SASR 281, discussed.
Sands v Channel Seven Adelaide Pty Ltd [2009] SASC 215; S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468; Channel Seven Adelaide Pty Ltd v S, DJ (2007) 248 LSJS 75; Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296; Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466; State Government Insurance Commission v Lane (1997) 68 SASR 257; Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Pozzan v Gibbons (No 2) (2006) 244 LSJS 442; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; Krix v Citrus Board of South Australia (2003) 87 SASR 229; Bates v Nelson (1973) 6 SASR 149; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Glenmont Investments Pty Ltd v O'Loughlin [1999] SASC 504; Jacomb v Australian…

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 Sands v Channel Seven Adelaide Pty Ltd (No 2)

Details

AGLC: Sands v Channel Seven Adelaide Pty Ltd (No 2) [2009] SASC 365
Case: [2009] SASC 365
Decision Date: 25 November 2009

CaseChat Overview and Summary

Sands commenced proceedings against Channel Seven Adelaide Pty Ltd, alleging defamation. The dispute was heard and determined by the Federal Court of Australia. The plaintiff sought to recover damages from the defendants for the publication of allegedly defamatory material. The defendants, in turn, applied for indemnity costs, arguing that the plaintiff's case was so weak that he ought to have known he had no chance of success.

The court was required to decide whether the plaintiff's refusal to accept offers of compromise by the defendants warranted an award of indemnity costs against the plaintiff. Additionally, the court had to determine whether the costs awarded to the first defendant should be limited given that the plaintiff succeeded on some issues and whether the costs against the second defendant should be limited due to the extensive evidence presented during the trial.

The court found that the plaintiff's refusal to accept the defendants' offers of compromise was not imprudent or unreasonable, as the plaintiff's case against each defendant was not objectively so weak as to justify an award of indemnity costs. The court held that the first defendant was entitled to its costs without any reduction, as the successful defence of justification was not formulated until the action had been on foot for almost four years. The court also found that the second defendant was entitled to its costs without any reduction, despite the extensive evidence presented during the trial, as the trials of the claims against both defendants were ordered to be heard together, over the plaintiff's objection.

The court awarded costs in favour of the defendants on a party and party basis. The final orders reflected that the defendants were entitled to their costs from the plaintiff on the standard basis, with no award of indemnity costs.

Orders