Zoef v Nationwide News Pty Ltd (No 2)

The parties to this proceeding were Mr Zoef (the plaintiff) and Nationwide News Pty Ltd (the defendant). Mr Zoef sought to vary orders made by the Court of Appeal on 18 October 2016, which had concerned damages awarded by the trial judge, the back-dating of the judgment, pre-judgment interest, and indemnity costs. The application was brought by way of a notice of motion filed on 4 November 2016.

The legal issues before the Court of Appeal were whether it had the power to vary its previous orders, particularly in relation to back-dating the judgment and awarding indemnity costs, given that the notice of motion was filed out of time. The court was required to consider the application of Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) and (3C), the power to dispense with the requirements of the rules under s 14 of the Civil Procedure Act 2005 (NSW), the limited exceptions to the finality of judgments under the "slip rule" (UCPR r 36.17), and the application of UCPR r 36.4(3) concerning the back-dating of judgments. Additionally, the court considered whether s 40 of the Defamation Act 2005 (NSW), relating to indemnity costs, applied to an appeal and whether the defendant's offers of amends were reasonable at the time they were made.

The Court of Appeal reasoned that while the notice of motion was filed out of time, the delay was caused by an oversight in the solicitor's office and that the interests of justice favoured granting the application to vary the orders. The court exercised its power under UCPR r 36.16(3A) to dispense with the requirements of the rules. It applied the "slip rule" under UCPR r 36.17 to correct an error in the original orders, specifically to back-date the judgment to 16 October 2015, aligning it with the trial judge's original judgment date. The court also found that the defendant's offers of amends were not reasonable when made, and therefore, s 40 of the Defamation Act 2005 (NSW) applied to the appeal, justifying an award of indemnity costs.

The Court of Appeal made further orders in addition to those of 18 October 2016. It ordered that the judgment take effect on 16 October 2015 and varied the costs order to provide for the defendant to pay the plaintiff’s costs of the proceedings on an indemnity basis. The plaintiff's notice of motion was otherwise dismissed, and the respondent was ordered to pay 80% of the plaintiff's costs of the notice of motion.