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…

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.

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Details

Case: [1999] NSWSC 244
Decision Date: 24 March 1999

CaseChat Overview and Summary

In Shellharbour Golf Club Ltd v Wheeler, the plaintiff, Shellharbour Golf Club Limited, initiated proceedings against the defendant, Mr. Wheeler, seeking relief for defamatory statements made by the defendant against the club. The matter was heard in the Supreme Court of New South Wales. The primary dispute centred on whether the defendant's statements were defamatory and, if so, whether the club was entitled to indemnity costs for the litigation expenses incurred.

The legal issues that the court needed to address included whether the statements made by the defendant were indeed defamatory, the extent to which the statements caused harm to the club's reputation, and whether the club was entitled to indemnity costs. The court had to consider the principles of defamation law, particularly focusing on the imputations made and the resultant damage to the club's reputation. Additionally, the court examined the relevant provisions of the Civil Procedure Act 2005 (NSW) to determine the conditions under which indemnity costs could be awarded.

In its reasoning, the court concluded that the statements made by the defendant were defamatory and had caused harm to the club's reputation. The defamatory nature of the statements was found to be substantial, leading to a negative impact on the club's standing in the community. Regarding indemnity costs, the court held that the club was entitled to such costs as the defamation proceedings were successful, and the defendant's conduct was deemed vexatious. The court's decision was influenced by the conduct of the defendant throughout the litigation process, which was found to be unreasonable and without merit.

The final orders of the court required Mr. Wheeler to pay damages to Shellharbour Golf Club Limited and to indemnify the club for the costs incurred during the litigation. The court's decision underscored the importance of protecting reputations from defamatory statements and affirmed the availability of indemnity costs in cases where the defendant's conduct is found to be vexatious.

Orders