Walter Vignoli v Sydney Harbour Casino Pty Ltd & Anor [1999] NSWSC 1227

New South Wales Supreme Court CITATION : Walter Vignoli v Sydney Harbour Casino Pty Ltd & Anor [1999] NSWSC 1227 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20875/96 HEARING DATE(S) : 10 December 1999 JUDGMENT DATE : 15 December 1999

Walter Vignoli (Plaintiff) PARTIES : Sydney Harbour Casino Pty Ltd (First Defendant) John Grimshaw (Second Defendant) JUDGMENT OF : Bergin J

COUNSEL : B.W. Collins QC/T.D.F. Hughes (Plaintiff) Ms L McCallum (Defendants) SOLICITORS : Nicholas G Pappas & Co (Plaintiff) Dunhill Madden Butler (Defendants) CATCHWORDS : Application for indemnity costs in circumstances where an award of aggravated damages had been made for unjustifiable defence - Aggravated damages and indemnity costs distinct awards. ACTS CITED : Part 52A Rule 33(4)(e) and (5) Supreme Court Rules 1970 (NSW). Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited & Ors (1988) 81 ALR 397; CASES CITED : Rouse v Shepherd (No2) (1994) 35 NSWLR 277; Cassell & Co Ltd v Broome [1972] AC 1027. DECISION : Indemnity costs awarded from date of filing defence in November 1996 to admission of liability on 25 October 1999. (pars. 31 and 32)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BERGIN J

DATE 15 DECEMBER 1999

20875/96 - WALTER VIGNOLI v SYDNEY HARBOUR CASINO PTY LIMITED & JOHN GRIMSHAW

JUDGMENT - COSTS

1 On 14 August 1996 the plaintiff filed a Statement of Claim in which he brought an action against the first and second defendants for defamation. After some amendment was allowed on the first day of the hearing to accommodate a second action for defamation against the same defendants the trial commenced before me and a jury of four on 1 November 1999 and concluded on 5 November 1999. The jury found that, in respect of the two matters complained of, the first was published by the defendants but did not carry the imputation pleaded and the second was not published by the defendants. I entered verdicts for the defendants. 2 In the same Statement of Claim the plaintiff brought an action against the first defendant for false imprisonment. The first defendant admitted liability in respect of this action by letter dated 25 October 1999 from its solicitors to the plaintiff's solicitors in the following terms: We are instructed to put you on notice that our client intends to not contest the issue of liability in relation to the false imprisonment component of your client's claim. It is our view that the proper course in such circumstances would be to have the different causes of action dealt with separately. Consequently, we seek your consent to have the matter of defamation dealt with at the hearing on 1 November 1999 and the issue of damages for false imprisonment determined at a date to follow shortly thereafter. 3 On 8 November 1999 when the false imprisonment matter was listed for hearing an order was made by consent dispensing with the jury. Mr McAlary QC made an application for an adjournment. That application was based on the unavailability of a "central witness", Mr Craig Dunn, who was claimed to have been in Mr Vignoli's presence during the whole of the period. 4 Mr Collins QC formally opposed the application but indicated that he accepted what Mr McAlary QC had said about the effect on his case of Mr Dunn's absence. He submitted that all counsel were available and the plaintiff wanted his case to go ahead and if any adjournment was to be granted he wanted to ensure that the plaintiff was protected as to costs. 5 Mr Dunn had apparently been involved in a motor vehicle accident on the previous weekend in Kangaroo Valley and although the details of his condition were unknown it was clear that he was not available that day. In the circumstances I granted an adjournment on the basis that the parties could restore that matter to the list after further information was available to assist in the assessment of when the matter could proceed to hearing. 6 The matter was restored to the list on Tuesday 9 November 1999 when, over the objection of the defendant, I listed it for hearing the following day. On 10 November 1999 a further application for an adjournment was made by Mr McAlary QC on the basis of a medical report from Dr Noel Newton of Picton dated 9 November 1999 which stated: This 40 year old patient was involved in a MVA on 5/11/99 and has concussion and whiplash. X-Rays being done today. They are not available as yet however I saw him this morning. He has concussion with headache and whiplash with severe right neck spasm. He is having physiotherapy and will be unfit to travel and give evidence this week. I would anticipate he would be fit next week. 7 I refused the adjournment and expressed the view that the proceedings were not impeded from commencing if, as it seemed to me was the case, Mr Dunn could be available for telephone communication to give any instructions that needed to be obtained in respect of matters that may not have been anticipated in the evidence of Mr Vignoli or his witnesses. 8 The hearing of the assessment of damages for false imprisonment proceeded to hearing on 10, 11 and 12 November 1999. The first defendant did not call any evidence. I delivered my judgment on 22 November 1999. 9 The costs argument was heard on 10 December 1999. Mr B W Collins QC, leading Mr T D F Hughes, of counsel, appeared for the plaintiff and Ms L McCallum of counsel appeared for the defendants.