Goldsworthy v Radio 2UE Sydney Pty Limited & Anor [1999] NSWSC 772

New South Wales Supreme Court CITATION : Goldsworthy v Radio 2UE Sydney Pty Limited & Anor [1999] NSWSC 772 CURRENT JURISDICTION : Common Law Division Defamation List FILE NUMBER(S) : 20133/95 HEARING DATE(S) : 30 July 1999 JUDGMENT DATE : 30 July 1999

Allan John Goldsworthy (Plaintiff) PARTIES : Radio 2UE Sydney Pty Ltd (First Defendant) Ray Hadley (Second Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr T Molomby (Plaintiff) Mr McClintock SC (Defendants) SOLICITORS : Gells Solicitors (Plaintiff) Bush Burke & Company Solicitors (Defendants) CATCHWORDS : DEFAMATION - Costs. ACTS CITED : Supreme Court Act 1970 SCR, Pt 52A, r 11 and r 33 Thiess v TCN Channel Nine Pty Ltd (No. 5) [1994] QdR 156; CASES CITED : Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137; John Fairfax and Sons Limited v Palmer (1987) 8 NSWLR 297; and Toomey v John Fairfax and Sons Ltd. DECISION : See para 17.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J FRIDAY 30 JULY 1999 20133 / 95 - ALLAN JOHN GOLDSWORTHY v RADIO 2UE SYDNEY PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: When I delivered judgment in this matter on 9 June last, [1999] NSWSC 436, I invited the representatives of the parties to make submissions on the question of costs. Neither of them wished to do so and I accordingly made an order that the defendants pay the plaintiff's costs of the proceedings, this order being made, as I understood it, in effect by consent. 2 Subsequently, a Notice of Motion was filed on 11 June seeking orders that such orders as to costs be set aside and that I hear argument upon and determine the costs of the proceedings. This application was supported by an affidavit by the solicitor for the defendants, Mr Burke, who said although he instructed Counsel to consent to the costs order being made, on reading my judgment, he believed there were a number of grounds on which the question of costs could be argued. 3 When the matter came on for hearing today it became apparent that the plaintiff was also unhappy with the order for costs because no special order had been made pursuant to SCR Pt 52A, r 33 so that as a result of my earlier orders the plaintiff was only entitled to one half of the costs that would otherwise be payable and not entitled to the costs of briefing two counsel; and the plaintiff also wished to have this aspect of my earlier costs order reviewed. Because of an order I made on 15 June last no steps have been taken into the Registry to enter judgment and so the order for costs has not been entered and there is undoubted jurisdiction to vary it. 4 Section 76 of the Supreme Court Act 1970 provides that, subject to the Act and the Rules, costs shall be in the discretion of the Court, and Pt 52A, r 11 provides that if the Court makes any order as to costs the Court shall, subject to such Part, order that the costs follow the event except where it appears to the Court that some other order should be made as to the whole or any part of the costs. 5 This is the general rule, although an exception is sometimes made in cases where there are multiple issues and different parties are successful on different issues, provided that the costs can reasonably be separated or appropriated to the relevant issues, and that such issues are not inexorably intermingled. The relevant cases in this State are referred to in Ritchie: Supreme Court Procedure (NSW) at para [52A.11.2]. 6 As far as I am aware, and Counsel have not been able to point me to any decision to the contrary, the practice in this State has been that where a plaintiff succeeds in a defamation action the plaintiff recovers his or her costs without qualification, even if he or she only succeeds on one or some of a greater number of imputations notwithstanding that each imputation constitutes a separate course of action. There is, it seems to me, a very good reason for this, namely, that the plaintiff in a defamation action in bringing the proceedings seeks to vindicate his or her reputation. If a plaintiff succeeds on only one or some of a number of imputations, he or she nevertheless vindicates his or her reputation and it is not generally of significance to such vindication that the plaintiff has failed in respect of other imputations, although there can be exceptional circumstances where a finding of truth on a particular imputation would do more harm to the plaintiff's reputation than a judgment in his or her favour on other imputations. 7 This, it appears, was to a significant degree what happened in Thiess v TCN Channel Nine Pty Ltd (No. 5) [1994] QdR 156 at 206-210, where the matter of costs was considered. It is however important to bear in mind a number of factors, firstly that although there is a practice akin to it, there is in our Rules no specific equivalent to the Queensland O 91, r 3 upon which the Queensland court placed reliance; and furthermore, whilst rejecting the approach of simply adding up the number of imputations upon which the plaintiff succeeded and those on which he failed, the Court noted that it was a case where there were a number of separate publications, and that there were really three discreet areas of dispute or "units of litigation", where the plaintiff had been wholly unsuccessful on the first, largely unsuccessful on the second, and wholly successful as to the third, which was the least damaging of the imputations. 8 Here on the other hand there was only one publication, there was only "issue of litigation", there is no equivalent to the Queensland Rule of Court and the circumstances were quite different. More importantly, as I have already observed, there is no practice in this State, that I am aware of, to differentiate as to costs in defamation cases between the imputations on which the plaintiff has succeeded and those on which he has failed. I, therefore, would not be prepared to adopt such a course in this case, but I have considered whether it would be practical or feasible to do so, if I were so minded. 9 On the first day of the hearing, 22 March 1999, there were procedural arguments. There was a short argument in relation to imputations (b) and (c) and I struck out imputation (b) but declined such application in respect of imputation (c): see [1999] NSWSC 291. The jury, having been empanelled at about 10.30 am, and sent away whilst this and another argument on the procedure to be followed (see [1999] NSWSC 290), were then brought into court and Senior Counsel for the Plaintiff commenced his opening address. The jury were involved the rest of that day and all of the second day, 23 March, at the end of which they returned verdicts in favour of the plaintiff on imputations (a) and (d) and in favour of the defendants on imputations (c) and (e). 10 On 24, 25 and 26 March evidence was led concerning the plaintiff's reputation and his claim for damages, and Counsel addressed in respect of the defence of comment in relation to imputations (a) and (d). At the end of that time I reserved my decision and in my judgment of 9 June, ([1999] NSWSC 436) I dealt with the defence of comment and the issue of damages, and I directed the entry of judgment for the defendants on imputation (a) and for the plaintiff on imputation (d), and assessed at damages at $75,000 plus interest. 11 It would be impossible, in my view, to break-up the time taken in the course of the hearing and apportion such time to the different imputations. It would be unrealistic to say that at the end of day two the plaintiff had failed on two of the five imputations and therefore should pay, for example, a proportion of the defendants' costs, because the time to that stage had been largely taken up with the imputation on which the plaintiff ultimately succeeded, namely imputation (d). On days 3, 4 and 5 the evidence relating to the plaintiff's reputation and claim for damages went to both of the imputations that were then remaining and would have been but minimally shorter if only imputation (d) was then left. Therefore, although I would not be prepared to break up the costs by reference to the time taken on the different imputations, I point out it would also be an impossible task to attempt. For these reasons I adhere to my earlier orders that the defendants pay the plaintiff's costs of the proceedings. 12 Mr McClintock SC for the defendants also submitted that I should order the plaintiff to pay the defendants' costs up to the first day of the hearing, 22 March 1999, because it was only on the filing in court on that day of the Second Further Amended Statement of Claim that the imputation on which the plaintiff ultimately succeeded, namely, that "he is a heartless person" was pleaded. Some of the earlier imputations alleged were abandoned and as to the others the defendant succeeded and, therefore, it was submitted that as the plaintiff would have failed but for the amendment, the plaintiff should pay the costs up to the date of such amendment, and he referred me to Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 at 154,156. 13 But, that principle only applies where a plaintiff makes a later amendment which substantially alters the case the defendant has to meet, and without which the proceedings would have failed. Here I do not regard the later amendment as substantial in that sense. It is a recognised fact that pleadings in defamation cases, particularly the imputations alleged, are substantially honed and refined time and time again before the matter actually gets to the final hearing. This may not be desirable but it is a fact of life and in this case, although no reference was made in any of the earlier pleadings to the plaintiff being a "heartless person", there was from the original Statement of Claim an imputation which alleged that he was "a person who had no compassion". In my view to say that a person has no compassion and to say he is a heartless person are substantially the same and, accordingly, I do not consider that the plaintiff should be deprived of his costs up to the date of the amendment. He should pay the costs thrown away by the amendment, but these would not include all the costs of the preparation of the case for trial. 14 I turn now to consider Pt 52A, r 33. The issue is whether I should make a special order pursuant to subrules (4)(e) and (5). I was referred to John Fairfax and Sons Limited v Palmer (1987) 8 NSWLR 297 where the Court of Appeal held that matters relevant to the exercise of the discretion included the existence of complex questions of law and fact, the presence in a verdict in proceedings for defamation of the element of vindication of the plaintiff and his reputation, and the existence in respect of defamation proceedings of the practical facility of the Defamation List in the Supreme Court, but that matters not relevant included the plaintiff's expectation of a likely verdict at the time of the commencing the proceedings and the professional status and standing of the plaintiff. 15 In this case the questions of law and fact were not particularly complex, and could have been disposed of, one would hope, without undue difficulty in the District Court. There is now a special Defamation List in the District Court but that was not the case at the time these proceedings were commenced, and there certainly was a culture in this State to bring proceedings for defamation, particularly those involving the public media, such as a metropolitan radio station with franchised relays to country and interstate stations, in this Court. I do not consider that the plaintiff had a reasonable expectation of obtaining more than he in fact recovered at the time he commenced the proceedings, but in any event, the question of the plaintiff's expectation has been revisited since Palmer's case by the introduction of subrule (6). It was held in Palmer that the professional status and standing of the plaintiff was not a material consideration and in that case the plaintiff was a prominent physician. Here he was a barrister-at-law, an officer of the Court, and the case concerned his conduct of a case in a court. This, I think, takes the case out of the general rule that the professional standing is not relevant and I refer to Toomey v John Fairfax and Sons Ltd noted at Ritchie: Supreme Court Procedure (NSW) para [130350]. 16 In all the circumstances I consider this was an appropriate case to be brought in this Court and that I should make an order under subrule (5) for the plaintiff to recover his costs as though rule 33 did not apply. Those facts and also the fact that the defendant saw fit to engage Senior Counsel, in my view, is sufficient ground for an order under subrule (7) for two counsel. 17 I make the following orders: (1) Costs occasioned by and thrown away by the filing of Second Further Amended Statement of Claim to be paid by the plaintiff. (2) Costs occasioned by and thrown away by the filing of the defendants' last Amended Defence to be paid by the defendants. (3) I confirm order for the costs of the proceedings made on 9 June 1999. (4) I order such costs be assessed as though SCR Pt 52A, r 33 did not apply. (5) I certify for two counsel. (6) The defendants' Notice of Motion filed 11 June 1999 dismissed. 18 In view of the fact that both parties have argued questions of costs today, the defendant has failed and the plaintiff has obtained an order which should have been sought on 9 June, I consider that there should be no order for the costs of the motion and that each party should pay their own costs of the Notice of Motion and of today's hearing. **********