Randwick Labor Club Limited & Ors v Amalgamated Television Srvices Pty Limited [2000] NSWSC 1098

New South Wales Supreme Court

CITATION : Randwick Labor Club Limited & Ors v Amalgamated Television Srvices Pty Limited [2000] NSWSC 1098 FILE NUMBER(S) : SC 20024/98 HEARING DATE(S) : 29/11/00 JUDGMENT DATE : 29 November 2000

PARTIES : JUDGMENT OF : James J at 1

COUNSEL : R A Campbell - Plaintiff K Rees - Defendant SOLICITORS : Messrs Bowen & Gerathy - Plaintiffs Mallesons Stephen Jaques DECISION : Defendant to pay plaintiffs' costs on a party party basis

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

WEDNESDAY 29 NOVEMBER 2000

20024/98 - RANDWICK LABOR CLUB LIMITED & ORS v AMALGAMATED TELEVISION SERVICES PTY LIMITED

JUDGMENT - on costs

1 HIS HONOUR: In this matter I delivered a reserved judgment on 18 September 2000. In para 274 of that reserved judgment I stated the amounts which I had decided that I should award to the various plaintiffs. In para 275 of the judgment I said that I would not immediately enter any verdicts because interest might have to be added to the amounts stated in para 274 in order to arrive at the amounts for which verdicts should be entered. I also noted that there was the outstanding question of the costs of the proceedings. 2 The parties have been able to agree on the amounts of interest to which the various plaintiffs are entitled in their verdicts and I have earlier today entered the following verdicts: Randwick Labor Club $26,708 Mr Murray $96,150 Mr Scott $74,783 Mr Ford $96,150 Mrs Bridge $74,783 Mr Bell $74,783 Mr Riordan $96,150 Mr Bridge $96,150 3 Although the amounts the individual plaintiffs have recovered are less than $225,000, it appears to me that the plaintiffs had sufficient reason for commencing and continuing the proceedings in this court and accordingly I am of the opinion that the plaintiffs should be entitled to payment of their costs of the proceedings, notwithstanding Pt 52A r 33 subrule (2) of the Supreme Court Rules. All of the plaintiffs sued in the one set of proceedings and in my opinion the appropriate comparison is between the total amount recovered by all of the plaintiffs and the figure of $225,000 and not a comparison between the amount recovered by any individual plaintiff and the sum of $225,000. 4 Counsel for the plaintiffs has submitted that an order for costs on an indemnity basis should be made in favour of the plaintiffs. An affidavit by a solicitor in the employ of the solicitors for the plaintiffs has been filed in support of this application for indemnity costs and it is necessary for me to refer to some of the history of the negotiations and other communications between the solicitors for the parties, as disclosed in the annexures to this affidavit. I have taken into account all of the contents of the affidavit, even if I do not expressly refer to some of them in this judgment. 5 On 3 March 2000 the solicitors for the defendant made an offer of compromise. By the offer of compromise the defendant offered the first plaintiff a judgment of $10,000 plus costs and each of the second to eighth plaintiffs a judgment of $20,000 plus costs. This offer of compromise was an offer complying with Pt 22 of the Supreme Court Rules. 6 On 16 March 2000 the solicitors for the plaintiffs made an offer of settlement in the following terms: "1. The first plaintiff to receive $24,000 plus costs; 2. The seven individual plaintiffs to each receive $45,000 plus costs; 3. A suitably worded apology to be broadcast during the Weekly News on Channel 7." 7 A form of apology was suggested in the letter. 8 It was common ground that this offer did not comply with Pt 22 of the Supreme Court Rules and hence did not come within Pt 52 r 22 of the Supreme Court Rules. 9 At the end of March 2000, a trial pursuant to s 7A of the Defamation Act was held and at that trial the jury found that certain defamatory imputations were conveyed by the publication complained of about each of the plaintiffs. 10 On 30 May 2000 the solicitors for the plaintiffs wrote to the solicitors for the defendant inquiring whether the defendant would be maintaining the defence of qualified privilege. 11 On 23 June 2000 the solicitors for the defendant wrote to the solicitors for the plaintiff saying that the defendant did not intend to withdraw its defence of qualified privilege and that the defendant's solicitors were preparing for the trial on that basis. 12 On 29 June 2000 the solicitors for the defendant made an offer in accordance with Pt 22 of the Supreme Court Rules whereby the defendant offered the first plaintiff a judgment of $20,000 plus costs and each of the individual plaintiffs a judgment of $30,000 plus costs. 13 On 3 August 2000 the solicitors for the defendant made on offer to the solicitors to the plaintiffs to settle the proceedings in the following terms: