Webster v Coles Myer Limited; Thompson v Coles Myer Limited (No. 2)

[2009] NSWDC 128

CITATION:	Webster v Coles Myer Limited; Thompson v Coles Myer Limited (No. 2) [2009] NSWDC 128
HEARING DATE(S):	15 May 2009
JUDGMENT DATE:	15 May 2009
EX TEMPORE JUDGMENT DATE:	15 May 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Vary order 1 of the judgment of 28 April 2009 to include interest in the sum of $9,503.19 making a total of $89,770.19 up to and including 28 April 2009 together with a daily interest rate of $5.77 thereafter. (2) Vary order 2 of the judgment of 28 April 2009 to include interest in the sum of $26,977.86 with a daily rate of $16.38 and an agreed rate for past and future superannuation of $15,733.00 making a total of $296,660.02 inclusive of interest up to and including 28 April 2009. (3) Vary order 3 of the judgment of 28 April 2009 as to costs to provide that the defendant pay the plaintiffs’ costs as follows: (a) As to Mr Webster (1842 of 2006) the defendant pay the plaintiff’s costs of the proceedings, such costs to be assessed on the ordinary basis up to and including 26 November 2008 and such costs to be assessed on the indemnity basis from and including 27 November 2008; (b) As to Mr Thompson (2538 of 2006) the defendant pay the plaintiff’s costs of the proceedings, such costs to be assessed on the ordinary basis up to and including 2 December 2008 and such costs to be assessed on the indemnity basis from and including 3 December 2008; and, (c) Each party pay his or its own costs thrown away by reason of the plaintiffs in both actions abandoning the claim in negligence. (4) Certify the plaintiff to be represented by two counsel (including two junior counsel where one of those counsel is not senior counsel) at the hearing and preparation of trial. (5) Grant a stay of 28 days from today with liberty to apply.
CATCHWORDS:	TORT - defamation - costs - costs of two counsel awarded
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 48A
CASES CITED:	Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 705 Erglis v Buckley [2005] QSC 25 Jones v Sutton (No 2) [2005] NSWCA 203 Porter v John Fairfax Publications [2001] NSWSC 680
PARTIES:	Plaintiff in 1842 of 2006: Karl Webster Plaintiff in 2538 of 2006: Stewart James Thompson Defendant: Coles Myer Limited
FILE NUMBER(S):	1842 of 2006; 2538 of 2006
COUNSEL:	Plaintiffs: Mr R Weaver Defendant: Mr D Caspersonn
SOLICITORS:	Plaintiffs: Konstan Lawyers Defendant: McCulloch and Buggy

Judgment

1. This is an application by the plaintiffs for costs (including indemnity costs), interest and superannuation. The defendant brings an application seeking to resist the order for indemnity costs insofar as any claim is brought under s 48A Defamation Act 1974 (NSW) and has also sought costs thrown away by reason of each of the plaintiffs abandoning a claim for negligence. The issues of the sums payable for past and future superannuation and interest on judgment have been agreed and I made orders in accordance with the sums agreed to by the parties.

2. In relation to costs, I have made orders for the payment of costs to be assessed on an ordinary basis. The ordinary basis up to the dates of the offers of compromise and thereafter to be assessed on the indemnity basis. I have rejected the plaintiff’s claim for costs pursuant to s 48A Defamation Act 1974 and the parties have both indicated they do not require reasons for this decision.

3. In relation to the application for the plaintiff to pay the defendant’s costs thrown away by reason each of the plaintiffs abandoning his claim in negligence, I note that when these proceedings were commenced by way of statement of claim filed on 2 May and 2 June 2006 respectively by each of the plaintiffs only a claim of negligence was pleaded and it was not until the matter came before Judge Armitage on 1 August 2007 that leave was sought to amend to include a claim for defamation and false imprisonment. I have heard argument from counsel for the plaintiff and the defendant and I am of the view that the parties should each pay their own costs thrown away by reason of each of the plaintiffs abandoning his claim for negligence. Again, the parties have indicated they do not require reasons for this decision.

4. Two additional orders are sought. The first is that, given the complexity of the proceedings, it is appropriate for the plaintiffs to be represented by two counsel. Prior to the hearing, senior counsel was retained; at the hearing two junior counsel appeared.

5. Defamation cases are complex and orders for two counsel and, in particular, as opposed to junior counsel as opposed to senior and junior counsel are common particularly in the District Court even where damages are modest such orders are usually made. In Porter v John Fairfax Publications [2001] NSWSC 680 O’Keefe J made an order for the payment of two counsel in circumstances where following a District Court settlement clarification was sought as to the entitlement of two counsel, the payment of two junior counsel for costs. In Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 705, the plaintiff sought an order for costs for two counsel. Justice Simpson, although reducing the costs by reason of the smallness of the sum awarded which her Honour considered was a matter should have been brought in the District Court nevertheless awarded costs for two counsel. In Erglis v Buckley [2005] QSC 25, two senior counsel appeared on behalf of the defendant. The plaintiff was awarded only $15,000 damages and the defendant submitted that the plaintiff substantially failed in that the damages were very small. However, as the case was complex, an order was made for the costs of both counsel notwithstanding that there were two senior counsel. In Jones v Sutton (No 2) [2005] NSWCA 203 the Court of Appeal considered the costs orders which flowed in a judgment where a very small sum indeed $5,000 was awarded and substantially disallowed the costs of senior counsel on the basis of the comparative simplicity of the claim.

6. Each case must turn on its own facts. As Mr Weaver submits, this was a matter of considerable complexity on a number of issues. This was not the usual claim for false imprisonment in that it was not brought against the police. While in some ways the defamation claim should have been straightforward, it was nevertheless not an easy matter. It is my view that an order for two counsel should be made.

7. The final issue is whether or not a stay should be granted pending the appeal. No appeal notice has yet been lodged and I note that the time for doing so is still on foot. The plaintiff is really not ready to meet any application for a stay and is in no position to put on affidavits from the plaintiffs as to their financial position or to provide undertakings of the kind that are sometimes proffered.

8. This is a difficult case in that the impact of the events on Mr Thompson, in particular, has really been quite exceptional. Counsel have agreed that the appropriate order for me to make is to grant a stay of twenty-eight days from today with liberty to reply so that the defendant can bring an application before this Court if it is considered appropriate to do so as opposed to seeking such a stay in the Court of Appeal which is, of course, also possible. Accordingly, I have made those orders.

Orders

1. Vary order 1 of the judgment of 28 April 2009 to include interest in the sum of $9,503.19 making a total of $89,770.19 up to and including 28 April 2009 together with a daily interest rate of $5.77 thereafter.

2. Vary order 2 of the judgment of 28 April 2009 to include interest in the sum of $26,977.86 with a daily rate of $16.38 and an agreed rate for past and future superannuation of $15,733.00 making a total of $296,660.02 inclusive of interest up to and including 28 April 2009.

3. Vary order 3 of the judgment of 28 April 2009 as to costs to provide that the defendant pay the plaintiffs’ costs as follows:

(a) As to Mr Webster (1842 of 2006) the defendant pay the plaintiff’s costs of the proceedings, such costs to be assessed on the ordinary basis up to and including 26 November 2008 and such costs to be assessed on the indemnity basis from and including 27 November 2008;
(b) As to Mr Thompson (2538 of 2006) the defendant pay the plaintiff’s costs of the proceedings, such costs to be assessed on the ordinary basis up to and including 2 December 2008 and such costs to be assessed on the indemnity basis from and including 3 December 2008; and,
(c) Each party pay his or its own costs thrown away by reason of the plaintiffs in both actions abandoning the claim in negligence.

4. Certify the plaintiff to be represented by two counsel (including two junior counsel where one of those counsel is not senior counsel) at the hearing and preparation of trial.

5. Grant a stay of 28 days from today with liberty to apply.

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