TEDESCHI v FRANKLINS LIMITED [1994] NSWCA 306

TEDESCHI v FRANKLINS LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and SHELLER JA 24 October 1994

[1994] NSWCA 306

Handley JA. This is an application by a defendant in a defamation action for leave to appeal against an order for costs made by Levine J on 23 September this year.

Leave is required because his Honour's order related to costs which were in the discretion of the Court and hence within s 101(2)(c) of the Supreme Court Act.

The defamation action brought by the opponent against the claimant had been fixed for trial after expedition on 11 May this year. For reasons which have not been shown to be connected in any way with the defendant's application for leave to amend its defence, the case was not able to be reached on 11 May and on the following day, presumably at a fairly late stage, the case was marked 'not reached'.

It was then adjourned to a future callover and we have been informed from the Bar table that it is likely to be re-fixed for trial some time in the new year.

The defendant had given notice to the plaintiff on 4 May that it proposed to seek leave to amend its defence to add a defence of justification. His Honour heard this application on 16 May, reserved his judgment and granted it on 23 September. His Honour's orders included an order that the defendant pay the plaintiff's costs of the not reached hearing on 11 May 1994 on the basis of an adjournment arising from the grant of leave to amend, such costs to include counsel's fees on a refresher basis.

No doubt his Honour's intention reflected in that assumption was that the adjournment had been granted to the plaintiff on his request after the defendant had been given leave to amend that day before the trial commenced.

The claimant seeks leave to appeal to challenge this order as a wrongful exercise of the discretion the trial Judge undoubtedly had in the circumstances of the case.