New South Wales Supreme Court CITATION : Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 21241/96 HEARING DATE(S) : 1-2 March 2000 JUDGMENT DATE : 14 April 2000 PARTIES : Raymond Patrick Murrihy (Plaintiff) Radio 2UE Sydney Pty Limited (Defendant) JUDGMENT OF : Studdert J COUNSEL : J.D. Cummins QC/R. Campbell (Plaintiff) B. McClintock SC/B. Connell (Defendant) SOLICITORS : Eddy & Moloney (Plaintiff) Bush Burke & Company (Defendant) CATCHWORDS : Costs LEGISLATION CITED : Defamation Act CASES CITED : Beoco Limited v Alfa Laval Co. Limited DECISION : See para 13 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Friday 14 April 2000 21241/96 RAYMOND PATRICK MURRIHY v RADIO 2UE SYDNEY PTY LIMITED JUDGMENT 1 HIS HONOUR: On 1 and 2 March 2000 I presided at the trial by jury of the issues arising under s 7A of the Defamation Act in this matter. The jury found that two of the three imputations pleaded by the plaintiff were conveyed and that these two imputations were defamatory of the plaintiff. 2 Mr Campbell, on behalf of the plaintiff, submitted that the costs of that hearing should be the plaintiff's costs in the cause. Mr McClintock, on the other hand, submitted that such costs should be reserved, or that at least any costs order should reflect the time that was occupied at the trial in relation to the third imputation which the jury decided was not conveyed. Moreover, Mr McClintock submitted that the plaintiff should pay the defendant's costs of the cause until the date of the trial, as well as the costs of the motion to amend the imputations and the costs of implementing the amendment, the need for which was occasioned by my order of 1 March 2000. Mr Campbell opposed the making of those orders sought by Mr McClintock. 3 I reserved my judgment on the competing applications and required that affidavits be filed and served that addressed matters of chronology in this case. In response to that direction, Mr Hryce, solicitor with the carriage of this matter in the firm of solicitors acting for the defendant, swore an affidavit of 7 March 2000 and Mr Eddy, solicitor for the plaintiff, swore an affidavit of 20 March 2000. I have considered each of these affidavits. 4 The broadcast complained of in this case was made on 1 October 1996 and a statement of claim was promptly filed on 7 November 1996 but it was not until 1 March 2000 that the imputations were finally settled. The imputation pleaded in the statement of claim first filed did not ultimately go to the jury for its consideration. The accuracy of the chronology, Annexure A to Mr Hryce's affidavit, has not been challenged. This reveals that there were many amendments proposed to the plaintiff's statement of claim. 5 On 27 September 1999 Wood CJ at CL set the matter down for trial on the issues arising under s 7A of the Defamation Act and the trial date for 1 March 2000 was then appointed. 6 On 19 October 1999 the solicitors for the plaintiff forwarded to the solicitors for the defendant a proposed amended statement of claim (then the fourth version) with four imputations, each different from that in the original statement of claim. I do not propose to record all the matters of chronology set out in the annexure to Mr Hryce's affidavit, but on 9 December 1999 Simpson J dismissed the plaintiff's notice of motion to amend the imputations and this prompted a proposal to plead further imputations, a proposal expressed under cover of a letter from senior counsel for the plaintiff. Five imputations were then identified and these were all fresh. An exchange of correspondence between the solicitors for the parties then occurred. There was a further notice of motion by the plaintiff seeking to amend the imputations in the statement of claim. 7 Ultimately, that further notice of motion was the one considered by me on 1 March 2000 and the imputations the jury was asked to consider in the trial that followed were those the subject of my judgment on that date. It must be stated that the plaintiff had sought to have the application to amend his statement of claim heard before 1 March 2000 and I referred to the history of that attempt in para 3 of my reasons for judgment dated 2 March 2000. The imputations upon which the plaintiff sought to rely in the application before me on 1 March consisted of the five imputations first proposed after the unsuccessful application before Simpson J in December 1999 plus another three imputations. I allowed the plaintiff to amend para 4 of the statement of claim to plead three of the eight imputations and subsequently, as I have observed, the plaintiff was successful on two of them. 8 It is significant that it was conceded that the plaintiff could not have succeeded on the statement of claim as pleaded before I allowed its amendment on 1 March 2000. 9 Having considered the affidavit evidence and the chronology, it would not, in my opinion, be just to allow the plaintiff any costs prior to the amendment granted on 1 March 2000. Indeed, it seems to me that the plaintiff should be ordered to pay the defendant's costs up to that date. Until the amendment then granted, the plaintiff could not have succeeded in this case. Mr McClintock referred the Court to the statement of principle expressed by Stuart-Smith LJ in his judgment in Beoco Limited v Alfa Laval Co. Limited [1995] QB 137 at 154: "As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. There may, of course, be special reasons why this general rule should not be applied." 10 With the above expression of opinion the other members of the court in Beoco agreed. That statement of principle is relevant in the present circumstances and I do not see that there is any good reason why it should not be applied here. 11 I therefore propose to order that the plaintiff pay the defendant's costs of this cause incurred prior to 1 March 2000. In addition, the plaintiff should pay any costs reasonably incurred by the defendant because of the need to amend its defence in consequence of the amendment of the statement of claim. 12 This leaves the costs of the application on 1 March 2000 and the costs of the hearing before the jury on 1 March and 2 March 2000. There remains, of course, to be determined by a judge the issues in this cause that arise on the defence and on the reply, and in my opinion it is appropriate that the costs incurred on 1 March and 2 March 2000 should be reserved pending the resolution of the issues that will arise at the further trial. Formal orders 13 1. I order that the plaintiff pay the defendant's costs in this cause incurred prior to 1 March 2000 together with the defendant's reasonable costs of amending its defence in consequence of the amendment of the statement of claim in March 2000. 2. Costs of the application heard on 1 March 2000 and costs of the hearing before the jury on 1 March and 2 March 2000 are reserved. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.