Shellharbour Golf Club Ltd v Wheeler

[1999] NSWSC 244

CITATION:	Palmer & Anor v Belan & Anor [No 1] [1999] NSWSC 244
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20523/94; 20524/94; 20115/95
HEARING DATE(S):	1/2/99, 3/2/99, 4/2/99, 5/2/99, 8/2/99, 9/2/99, 12/3/99, 24/3/99
JUDGMENT DATE:	24 March 1999
PARTIES :	Edward Palmer (1 Pl) Denis Boner (2 Pl) Frank Belan (1 Def) Arthur Benjamin Casey (2 Def)
JUDGMENT OF:	Kirby J

COUNSEL :	M Holmes QC (Pls) T Molomby/J B Conomy (Defs)
SOLICITORS:	W G McNally & Co (Pls) Maurice May & Co (Defs)
CATCHWORDS:	Defamation; Costs; Indemnity costs
ACTS CITED:	Supreme Court Rules Pt 52 Rules 2, 17 & 24
CASES CITED:	John Fairfax & Sons Ltd v Palmer (1987) 8 NSWLR 297
DECISION:	See para 14

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Wednesday 24 March 1999

020523/94 - EDWARD PALMER v FRANK BELAN
020524/94 - EDWARD PALMER v FRANK BELAN & ANOR
020115/95 - DENIS BONER v FRANK BELAN & ANOR

JUDGMENT (re costs)

1 HIS HONOUR: On 12 March 1999 I gave judgment in respect of three actions for defamation against the defendant, Frank Belan, who is a party to each action, and against Mr Casey who is a party to two of the actions. In giving judgment I awarded damages to each plaintiff as set out in para 295.
2 In the case of Mr Boner, in his action against Mr Belan and Mr Casey, I awarded $75,000 plus costs. In the case of Mr Palmer, in his action against Mr Belan and Mr Casey, I awarded $65,000 plus costs. In the other action by Mr Palmer against Mr Belan alone, I awarded $25,000 plus costs.
3 I have to say at the time that I made the orders in respect of costs I did not specifically avert to Pt 52 r 2 which contains limitations in respect of the award of costs where certain amounts have been recovered.
4 Having now considered that part, and specifically the discretion which is given to me under Pt 52 r 24(4) it seems to me appropriate that the plaintiffs in each case should have their costs. I have in mind the considerations which are referred to in the judgment of the President in the matter of John Fairfax & Sons Ltd v Palmer (1987) 8 NSWLR 297. Specifically, I believe that an important part of the actions by the plaintiffs was the vindication of their reputation. The imputations made against each of them were serious, and there can be no question that those imputations damaged their reputations.
5 Mr Molomby, appearing for the defendants, resists such an order upon a number of bases. The first, he says that though there were questions of law which raised some difficulties, they could not be characterised as overwhelmingly difficult. The facts were within a fairly narrow compass, and were largely documentary. Secondly, he says that there is no reason why vindication of the reputations of the plaintiff could not have been obtained from the District Court. Finally, he says that the Defamation List within the Supreme Court was not utilised by the parties except in respect of the capacity of the publications to give rise to the imputations. This was not a matter where the parties were squabbling about issues such as particulars, interrogatories and discovery.
6 However, notwithstanding these arguments, it seems to me appropriate that the plaintiffs should have their full costs. I believe the questions of law, and indeed the questions of fact, were of some complexity. The challenge to the imputations by the defendants was an important stage in the proceedings. Although it is true that the matter may have been then transferred to the District Court, it seems to me appropriate, in the circumstances, that it should have remained in the Supreme Court.
7 I therefore make an order under Pt 52 r 24(4) that the plaintiff should have full costs in respect of each action.
8 There is a second application which is made on behalf of the plaintiffs. On 23 December 1998 offers of compromise were made in respect of each action. In respect of matter number 20115/95 the plaintiff offered to settle the proceedings for $20,000 plus costs up to the date of settlement, on a party and party basis. The offer was expressed to be open for 28 days.
9 In respect of each of the remaining actions relating to the publication, which was known as Exhibit C in the proceedings, the plaintiffs offered to compromise their actions for $15,000 plus costs on a party and party basis in each case. Again these offers were expressed to be open for 28 days. That 28 days, with the addition of the Christmas vacation, would extend to 29 January 1999.
10 The court is given power to award indemnity costs, through the use of the offer of compromise procedure, and the failure by the unsuccessful party to take advantage of such an offer, where the ultimate verdict exceeds that offer. That facility has been included in the rules in order to encourage the early compromise of actions, and to ensure that parties realistically approach the forthcoming litigation.
11 Mr Molomby, on behalf of the defendants, says that in the particular circumstances of this case it would be unfair to award indemnity costs, even though the plaintiffs recovered in each case more (and indeed, in two cases, substantially more) than the offers of compromise. It is submitted that after the service of the offers of compromise the plaintiffs materially changed their cases.
12 Correspondence, which has been placed before me, was sent to the defendant's solicitors identifying certain documents which would be relied upon as an indication of malice. However, in respect of the documents which were sent to the defendant's solicitors, accompanying the letter of 29 January 1999, they had no real prominence in the litigation, and no prominence at all in my findings in respect of malice.
13 However, on 1 February 1999 the plaintiffs did identify a matter which ultimately was included as a particular of malice, and was found by me to be evidence of malice on the part of Mr Belan. That is they identified the incident which occurred on 12 March 1993 relating to a silver bullet. Examining the particulars of malice, as found by me, this is but one of nine such matters. It is certainly not the most important. It was a colourful incident, which was certainly some evidence of Mr Belan's feelings towards Mr Boner, but there were many other matters which seemed to me far more important. In the scheme of things, I do not regard the plaintiff's case as materially changing by reason of its inclusion.
14 For these reasons it seems to me that the ordinary rule should apply, and that the plaintiffs in each case should have indemnity costs. Obviously the matter proceeded before me as a joint trial, so that the costs which would be payable in respect of that trial would be shared between the three actions rather than be trebled. Subject to that, I believe it is appropriate in this case that the plaintiffs should have indemnity costs.
ORDERS
1. Pursuant to Pt 52 r 24(4), the plaintiffs should have full costs in respect of each action.
2. Pursuant to Pt 52 r 17(4), such costs should be payable upon an indemnity basis from 23 December 1998. The costs payable prior to that date are to be assessed on a party and party basis.
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Last Modified: 03/26/1999