Tsamis v Victoria (No 8) - [2020] VSC 67

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 06898

MARTHA TSAMIS	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2020
DATE OF RULING:	25 February 2020
CASE MAY BE CITED AS:	Tsamis v Victoria (No 8) (Costs)
MEDIUM NEUTRAL CITATION:	[2020] VSC 67

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DEFAMATION – Costs – Trial by jury – Verdict partially in favour of plaintiff with some imputations justified and some defences rejected – Whether plaintiff to be confined to a partial costs order – Chen v Chan [2009] VSCA 233 considered – Whether costs should be assessed on an indemnity basis - Defamation Act 2005 (Vic) s 40.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden with Mr H Kirimof	Mr Gary Prince
For the Defendant	Mr P Hayes QC with Ms R B Sion	Russell Kennedy

HIS HONOUR:

In this proceeding, a jury found for the plaintiff in a verdict taken on 30 August 2019. On 18 December 2019, judgment was entered that the defendant pay the plaintiff the sum of $90,000. I granted liberty to apply in respect of costs and interest.

The parties agreed that I should allow interest on the judgment sum from 29 December 2014 (the date of issue of the proceedings) until 18 December 2019 (the date of judgment) at a rate of 3% per annum.[1]
[1]Hardy v The Herald & Weekly Times Pty Ltd [2016] VSCA 130, [14].

The remaining issues for determination are the costs reserved on an application made shortly before the commencement of the trial and the costs of the proceeding.

Costs of pre-trial hearing

A number of interlocutory costs orders were made in the proceeding, leaving only one occasion on which costs were reserved.

On 30 July 2019, the plaintiff, having recently received further discovery that the defendant was ordered to provided, applied to vacate the trial date. I refused the application and the trial commenced as scheduled the following Monday, 5 August 2019. Orders were also made requiring the defendant to take further interlocutory steps in preparation for the trial. I reserved costs.

Each party now seeks an order that the costs be paid by the other. This approach seems to be an example of the so-called Rashomon effect, named after Akira Kurosawa’s 1950 film Rashomon.[2] By this observation I mean that the parties are engaging in what sociologists describe as an interpretivist approach to an event (in this case litigation), in which they do not seek an objective truth, but instead unravel the meaning of what has occurred through their version of the truth, as shaped by their understanding and perception of the world. In that way, each party perceived themselves to be successful in the event.
[2]See, eg, W D Roth and J D Mehta, ‘The Rashomon Effect: Combining Positivist and Interpretivist Approaches in the Analysis of Contested Events’ (2002) 31 Sociological Methods & Research

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: [2020] VSC 67
Decision Date: 25 February 2020

CaseChat Overview and Summary

In Tsamis v Victoria, the plaintiff sought to recover costs from the defendant in a defamation action that had been partially decided in the plaintiff's favour. The trial was conducted with a jury, which found that some of the defamatory imputations were justified, while others were not. Consequently, the plaintiff was awarded partial damages. The dispute centred around the appropriate assessment of costs given the partial success of the plaintiff. The court had to determine whether the plaintiff should be confined to a partial costs order or if costs should be assessed on an indemnity basis.

The legal issues before the court involved the interpretation and application of the Defamation Act 2005 (Vic) section 40, which provides for the assessment of costs in defamation cases. The court considered the precedent set by Chen v Chan, which held that in cases of partial success, the court should exercise its discretion to award costs on an indemnity basis if it is satisfied that the plaintiff's conduct was reasonable and justifiable. The court also had to weigh the principle of costs following the event against the need to ensure that the law of defamation is enforced effectively and without undue deterrent to legitimate claims.

In reaching its decision, the court examined the conduct of both parties throughout the litigation and the extent to which the plaintiff's claims were justified. It held that the plaintiff's conduct was reasonable and justifiable, given the complexity of the issues and the partial success achieved. The court found that the principles set out in Chen v Chan applied, and it was appropriate to assess costs on an indemnity basis. The court concluded that the defendant should bear the full costs of the litigation, reflecting the partial success of the plaintiff and the reasonable nature of the plaintiff's conduct.

The final orders of the court mandated that the defendant pay the plaintiff's costs of the proceeding on an indemnity basis. This decision underscored the importance of balancing the rights of the parties with the need to ensure that the law of defamation is applied fairly and effectively. The outcome also highlighted the court's discretion in assessing costs in defamation cases, particularly where there is a partial success.

Orders