BOB KAY REAL ESTATE PTY LTD v AMALGAMATED TELEVISION SERVICE PTY LTD [1988] NSWCA 17

BOB KAY REAL ESTATE PTY LTD v AMALGAMATED TELEVISION SERVICE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HOPE and CLARKE JJA 29 June 1988, 29 June 1988 [1988] NSWCA 17

COSTS SCR Pt52 RULE 24 COSTS — where verdict in defamation matter less than $10,000.

Clarke JA On 18 August 1986 the trial of actions brought by the two appellantsagainst the respondent commenced before McInerney J and a jury. Both appellants had sued the respondent claiming damages for allegedly defamatory imputations which were made in a television programme which was broadcast on Channel Seven on 7 May 1984.

The imputations asserted serious misbehaviour both by the second appellant and the first appellant, which was in effect his company. The respondent denied the imputations, denied that the first appellant was defamed or, more accurately, identified in the material published, and pleaded qualified privilege and justifications.

At the end of the trial the jury returned verdicts of $5000 for each appellant.

Following the jury verdict McInerney J was required to decide whether qualified privilege had been made out and also to rule upon various applications for costs. In the event, he rejected the defences and ordered that the respondent pay those costs of the appellants, including fees for two counsel, appropriate for a verdict of less than $50,000.

The appellants have appealed from the trial Judge's refusal to exercise his discretion in such a manner as to allow them full costs. The respondent has cross-appealed, in turn challenging the decision to award the appellants any costs at all. In the cross-appeal it also challenged the allowance of fees for two counsel but has not maintained that challenge in this hearing.

It is convenient to deal first with the cross-appeal because the appeal is concerned with what was essentially a consequential order.