KELLY v JOHN FAIRFAX AND SONS LTD (NO 3) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, SAMUELS and MCHUGH JJA 2 May 1988, 15 August 1988 [1988] NSWCA 79 INTEREST — defamation interest on verdict-motion for review of amount ordered by Court of Appeal judgment entered and paid High Court refuses special leave to appeal challenge to amount of interest in the light of the later decision in Australian Consolidated press Ltd v Driscoll, unreported CA, 7 April 1988; (1988) NSWJB 43 — held: no ground shown to authorise disturbance of duly entered final judgment motion dismissed. Suggested inconsistency between Driscoll and John Fairfax and Sons Limited v Kelly (1987) 8 NSWLR 131 reserved. Supreme Court Rules, Pt20, Rule 10. Kirby P By notice of motion the claimant seeks to have the Court give further consideration to, and to review, the amount of interest awarded to the claimant by the orders made by the Court in John Fairfax and Sons Limited v Kelly (1987) 8 NSWLR 131. The background to the litigation, necessary to understand the motion, is fully set out in the judgments in the reported case. It is not necessary to repeat the facts. Brief oral submissions were heard on the motion and argument has proceeded, by agreement, on written submissions. The judgment of the Court in Kelly (above) was given on 31 March, 1987. The Court made orders that the appeal against the judgment entered pursuant to the jury's verdict be dismissed and that a cross-appeal be allowed. The cross appeal had been brought by the claimant from the decision of David Hunt J given on 24 April, 1985. His Honour disallowed interest on the judgment. His judgment is reported at (1985) 1 NSWLR 462. Allowing the claimant's cross-appeal, this Court ordered that there be substituted for the judgment in favour of the plaintiff in the sum of $115,000.00, judgment in the sum of $140,875.00. This new sum included an amount of interest in the sum of $25,875.00 The judgment was to take effect from 28 February, 1985, the date upon which the jury had returned its verdict in favour of the claimant. The claimant entered judgment in these terms on 28 May, 1987. An application by the opponent for special leave to appeal to the High Court (from the orders of this Court) was refused on 16 October 1987. The opponent paid the judgment sum together with interest upon the judgment. It is apparent that the reason for the filing of the claimant's notice of motion is the decision of the Court in Australian Consolidated Press Ltd v Driscoll, unreported, CA, 7 April, 1988; (1988) NSWJB 43. The claimant submits that there is a discrepancy between the amount of interest awarded to him in his case and the amount that would be payable if the Court were to apply the principles stated in Driscoll. Further, he submits that in the interests of uniformity of practice in the Supreme Court, this Court should clarify the governing principles applicable to the award of interest upon defamation verdicts and correct what is said to be the conflict between two recent decisions covering the calculation of such interest. 2 UNREPORTED JUDGMENTS Before going to the substantial issue raised by the motion, it is necessary to clarify what is apparently an error in the claimant's notice of motion. By the notice of motion, the claimant seeks a review of the amount of interest awarded. Although the proper amount is stated to be interest at the rate of 14% the claimant complains that in fact it was received at the rate of 7%. This, however, appears to be an incorrect representation of the judgment. Indeed, in the claimant's written submissions, (sub-para 2(i)) he states, correctly, that "although His Honour fixed interest at 15% in the instance (sic) case, the actual interest given was only 7 1/2%". It appears that the figures in the notice of motion of 14% and 7% should be substituted by the figures of 15% and 7 1/2% respectively. The preliminary issue raised by the opponent, and, in my opinion, the one decisive for the determination of this motion, is whether this Court has power to and should in the circumstances consider further the issue of interest in this case. The award of interest to the claimant was the subject of a closely fought cross-appeal, an order of the Court which the High Court declined to disturb and payment of the sum so ordered by the opponents. It is generally accepted that after an order has been made by a court and entered it may only be recalled or varied if: (a) such action is authorised by statute; (b) the entered judgment does not correctly express the Court's decision; (c) the judgment can be attacked for fraud or some other vitiating factor in some fresh proceeding; (d) all parties consent; or (e) where common justice requires that the order be set aside or varied. The claimant has failed to bring his submissions under any of these heads. Further to (a), the only relevant statutory basis to authorise an amendment of a perfected order of the Court duly entered after a contested hearing, is by way of the "slip rule". In this Court, that rule is found in the Supreme Court Rules Part 20 R10. The claimant has not shown that this is a matter for the application of the "slip rule" there stated. Indeed, the claimant does not submit that an Incorrect order was entered because of some mechanical or administrative error. Rather, he seeks, by his further arguments, to put in issue the reasoning of McHugh JA in this case. In substance, the claimant seeks to challenge two aspects of the reasoning of his Honour (with which I agreed). First, he challenges McHugh JA's conclusion that David Hunt J was entitled to find that, because the claimant had delayed in commencing and prosecuting his case, it would be unfair to award interest over the entire period (see ibid, 144D). Secondly, he challenges McHugh JA's adoption of the formula from the area of calculation of interest in common law personal injury cases and his application of it to this area of the calculation of interest in defamation cases (that is, once the relevant period for interest has been ascertained, the prescribed rate (in this case 15%), is divided by two to take into account the fact that the claimant's loss "accumulated" over the relevant period). What the claimant is thus seeking to do by his motion is, in effect, to appeal from the decision of this Court in his case in the light of the later decision in Driscoll (above). Clearly, the only permissible way by which the claimant could make such a challenge to the reasoning of this Court in Kelly (above) would be by appeal from the decision of this Court to the High Court. The principle of finality of litigation, which sustains the limited circumstances in which a court may disturb orders, formally pronounced and duly entered, now stands in the way of this Court's doing what the claimant seeks. The resolution of the suggested URJ KELLY v JOHN FAIRFAX AND SONS LTD (NO 3) (McHugh JA) 3 inconsistency between what was ordered in Kelly and in Driscoll must await a case in which the issue is a live one in litigation in which no final judgment stands in the way of its resolution. The application of the claimant fails. He must accordingly pay the costs of the motion. Samuels JA I agree with Kirby P. McHugh JA I agree with the judgment and orders of Kirby P in this matter. ORDER Motion dismissed with costs. COUNSEL: CLAIMANT: MR C EVATT Opponent: MR S WHEELHOUSE SOLICITORS: Claimant: BESTON AND RIORDAN Opponent: MALLESONS STEPHEN JAQUES