McMullen v TCN Channel Nine Pty Ltd [2000] NSWSC 938

New South Wales Supreme Court

CITATION : McMullen v TCN Channel Nine Pty Ltd [2000] NSWSC 938 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 21374/95 HEARING DATE(S) : 5 October 2000 JUDGMENT DATE : 5 October 2000

PARTIES : Patrick McMullen (Plaintiff) TCN Channel Nine Pty Ltd (Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr T Hale SC (Plaintiff) Mr P Gray (Defendant) SOLICITORS : Barnes & Wenden Attorneys (Plaintiff) Gilbert & Tobin Lawyers (Defendant) CATCHWORDS : DEFAMATION - costs John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131 CASES CITED : Thompson v Australian Capital Television Pty Limited [1998] SCACT 46, 133 ACTR 1, Bennett v Jones (1997) 2 NSWLR 355 Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 772 DECISION : See para 9.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J Thursday, 5 OCTOBER 2000 21374/95 - Patrick McMULLEN v TCN CHANNEL NINE PTY LTD JUDGMENT

1 HIS HONOUR: I delivered judgment in this matter on Tuesday 3rd instant and the matter has been re-listed today for determination of interest and costs. 2 In relation to interest, Mr Gray, counsel for the defendant, concedes that interest should be allowed at the rate of 2 per cent per annum from the date of the publication up to the present, but has submitted that a deduction should be allowed because of the delay that occurred in the plaintiff's prosecution of the proceedings between 28 May 1997 and 8 July 1998. In that regard he has referred me to the judgment of the Court of Appeal in John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131, particularly the remarks of McHugh JA at p 144; and also to Thompson v Australian Capital Television Pty Limited [1998] SCACT 46, 133 ACTR 1 at para 10. 3 Although there may be some exceptional cases, the general principle, as I understand it, at least in actions of tort, is that delay in commencing or prosecuting proceedings on the part of the plaintiff is not a reason for depriving him of interest for the relevant period. See particularly Bennett v Jones (1997) 2 NSWLR 355 at 375-376, and I do not understand John Fairfax & Sons Limited v Kelly to throw doubt on such practice. What happened there was that the trial Judge had declined to award any interest at all, but had held that if he did he would have made an allowance on account of the delay in commencing the prosecution of the action. McHugh JA, with whom Kirby P agreed, considered interest should have been awarded and, without referring to Bennett v Jones made the award which the trial Judge had indicated he would have made if he had considered any award of interest was appropriate in defamation cases. 4 I therefore award interest for the full period without deduction. It is agreed that the appropriate calculation is $15,220 and I allow that amount. 5 In relation to costs, the general rule is that costs follow the event: SCR Pt 52 r 11. It has been submitted on behalf of the defendant that some special order should be made in this case because the plaintiff failed on imputation (a), which it is submitted was the imputation which the plaintiff considered the most serious. 6 I recently reviewed the relevant cases, or lack of them, in relation to plaintiffs succeeding on one or more, but not all, the imputations alleged in Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 772. For the reasons I gave then, I am satisfied that no apportionment of the damages should be made, or would be practical in any event. 7 The evidence relating to the failure of the 1994 Higher School Certificate English class was relevant to all the imputations, as is apparent from the time devoted to it by both parties in that part of the hearing which followed the jury finding for the defendant on imputation (a). 8 It was also submitted that a special order should be made because the plaintiff's claim for special damages by way of loss of income was rejected; but most of the evidence going to his psychiatric and psychological condition over the relevant period was relevant to the issue of general damages as appears from para [94] of my earlier judgment. The only part of the evidence that was not relevant was the preparation of the financial reports. The preparation of the plaintiff's financial report is a discrete issue and I consider the appropriate order therefore is to order the defendant to pay the plaintiff's costs of the proceedings, but such costs not to include the cost of obtaining the plaintiff's financial report. 9 I therefore direct the entry of judgment for the plaintiff on Imputations (b) and (c) in the sum of $165,220. I order the defendant to pay the plaintiff's costs of the proceedings, but such costs not to include the preparation of the plaintiff's financial report. 10 (His Honour sought and obtained from the defendant's solicitors, an undertaking to take custody of Ex 28 and maintain it in its present form and produce it to the Court of Appeal if required.) oOo