New South Wales Supreme Court CITATION : Rene Rivkin v Amalgamated Television Services Pty Limited [2002] NSWSC 587 FILE NUMBER(S) : SC 20086/98 HEARING DATE(S) : 21 June 2002 JUDGMENT DATE : 3 July 2002 PARTIES : Plaintiff: Rene Rivkin Defendant: Amalgamated Television Services Pty Limited JUDGMENT OF : Cripps AJ at 1 COUNSEL : Plaintiff: BR McClintock SC & M Richardson Defendant: R Stitt QC and M Lynch SOLICITORS : Plaintiff: Gilbert and Tobin Defendant: Mallesons Stephen Jacques CATCHWORDS : Apportionment of costs - Supreme Court Rules Part 52A Rule 33 CASES CITED : John Fairfax & Sons v Palmer (1987) 8 NSWLR 297 DECISION : Defendant to pay the plaintiffs costs of proceedings IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIPPS AJ 3 July 2002 20086/98 Rene Rivkin v Amalgamated Television Services Pty Limited JUDGMENT: Costs 1 His Honour: The parties have agreed that interest on the verdict amounts to $12,866.91. Accordingly, I direct judgment to be entered in the sum of $162,866.91. 2 Mr Stitt QC on behalf of the defendant has applied for a stay of proceedings, it being the defendant's intention I was told, to lodge an appeal against the quantum of the judgment. I gave brief reasons why I would not grant a stay. To my understanding, the purpose of granting a stay in circumstances such as this is to ensure that a defendant appellant, if successful, will not be deprived of the fruits of victory. In these hypothetical circumstances that could happen if the difference between what I awarded and what I should have awarded will not be able to be recovered from the plaintiff. There is no evidence of there being such a problem. The judgment of this court is presumed to be correct and a stay ought not be granted unless there are circumstances warranting that course. And, in my view, none have been advanced. Accordingly the application is refused. Costs 3 The application for costs is directed to the proceedings conducted before Bell J in May 2001. On that occasion certain alleged imputations were held not to be capable of being defamatory and, contrary to the defendant's submissions, at least two were held to be capable of being defamatory. The plaintiff was given leave to formulate new imputations, which he did. The result was that five imputations went to the jury, the defendant was successful on three and the plaintiff was successful on one. It was unnecessary for the jury to consider the fourth imputation because it was an alternative to the imputation the jury found to be defamatory. 4 Mr Stitt has submitted that I should take these matters into account in the order I make for costs. There was some dispute between the parties as to what happened on the last occasion and, in particular, what occurred in October last year when the parties assembled before Bell J and made, as it seems to me, submissions very similar to the submissions both parties have made before me. Bell J made an order that costs would be costs in the cause and that order included the costs of the proceedings in October 2001. 5 The matter came on for hearing on 23 May 2001. The first day was spent in argument concerning what imputations could, and what imputations could not go to the jury and whether the plaintiff should be given leave to add other imputations. On that day, an application was, apparently, made for costs but the associate's record of proceedings records "no orders as to costs". The jury trial extended over 24 and 25 May and, on 28 May the jury commenced consideration of the matter. The jury returned at 7.30 pm on 28 May, and found in favour of the plaintiff on the imputation that ultimately became the subject of the proceedings before me. On that occasion her Honour entered verdict for the defendant on three imputations and verdict for the plaintiff on one. 6 That is where the matter seemed to lie until it was relisted before Her Honour on 31 October 2001 when the defendant made an application for costs and Her Honour made the order I have referred to above. 7 There is some force, in my opinion, in the submission on behalf of the plaintiff that the question agitated before me was disposed of by Her Honour, but I am prepared to assume that the question as to who pays the costs of the 7A trial and in what proportion is still open. It is clear beyond argument in my opinion that the plaintiff is entitled to his costs in respect of the proceedings before me, the defendant having failed on every issue other than the claim for punitive damages for publications outside NSW. 8 Mr Stitt's submission was directed to two issues. The first was that I should have regard to recent developments in the law demonstrating a preparedness by the courts to exercise a greater discretion with respect to costs than was formerly the case when, unless there were exceptional circumstances, costs followed the event. Thus, it was submitted, that I should have regard to the circumstance in three of the five causes of action that went to the jury. If I understood Mr Stitt's argument correctly, he did not submit that there should be no order for costs – (it would be difficult for him to have made that submission bearing in mind the order Bell J made). Rather, he suggested, that the plaintiff should receive only a modest proportion of his costs of the 7A trial. I have come to the conclusion that the plaintiff is entitled to his costs of the 7A trial without deduction. The defendant won a legal argument concerning two imputations and the plaintiff won a legal argument concerning two imputations. It is true that of the five imputations that went to the jury, the plaintiff was successful in one and the defendant in three with the fourth not being determined. However, the plaintiff brought the proceedings to vindicate his reputation. It would seem to me that other than the legal arguments to which I have already referred, almost all the remainder of the time was spent with counsel addressing the jury and the learned trial judge summing up. I do not think in these circumstances it is appropriate to make an order otherwise than that costs should follow the event. 9 Mr Stitt has also pressed an argument based upon Part 52A Rule 33. In short, the rule applies to claims for damages brought in the common law division of the court and provides, in effect, that a successful plaintiff will be deprived of the costs that would ordinarily be awarded in his or her favour if he or she recovers less than, in the case of defamation, $225,000. That is so, unless it appears to the Court that the plaintiff had sufficient grounds for commencing or continuing proceedings in the Supreme Court and the Supreme Court makes the appropriate order (sub rule 5). One ground is that at the time of commencing the proceedings the plaintiff had reasonable grounds to expect to recover an amount in excess of the prescribed amount (sub rule 6). Subject to sub rule 5, the amount recovered by the plaintiff would result in him being awarded half costs. 10 It has been pointed out in other cases that the exercise of the discretion under sub rule 5 requires the court to have regard to the apparent purpose of the preceding subsection viz that less important litigation will be determined by courts other than the Supreme Court, that when exercising the discretion of the court it is relevant to consider the complexity of the litigation, the advantages of conducting the proceedings in the Supreme Court and the importance, in the case of defamation, of providing public vindication– see John Fairfax & Sons v Palmer (1987) 8 NSWLR 297. 11 It has not been disputed that, in the past, defamation cases of the type presently brought by the plaintiff were heard in the Supreme Court without successful plaintiffs suffering any adverse costs consequences. However, it has been drawn to my attention the District Court has established its own defamation list with its own specialist defamation judge and Mr Stitt submits that, that being the case and there being no express reference in the rules to defamation cases, the court should now take the view that if the amount recovered is less than $450,000 the plaintiff will not recover full costs (by full costs I mean full party and party costs). 12 Having regard to the legal requirement that the court when determining damages in defamation cases must have regard to damages for non economic loss in personal injury cases, and in the absence of a claim for special damage, the full force and effect of Mr Stitt's submission would be that almost all defamation actions would have to be determined in the District Court unless the plaintiff was prepared to forego costs that would be otherwise ordered if he were successful. 13 No doubt there are defamation cases in the Supreme Court that should have been brought or continued in the District Court bearing in mind that that court has developed a case management strategy to deal with defamation proceedings not unlike that adopted in the Supreme Court. But in the instant case, no application was made that this matter be sent to the District Court. The proceedings were commenced probably, on my information, a little before the introduction of the defamation list in the District Court. The case did involve (as it seems do all defamation cases involving the media) legal complexity. It also must be remembered that the publication complained of was broadcast throughout Australia to a viewing audience in excess of one million. I am of the opinion that that is of relevance when considering whether it was reasonable for the plaintiff to bring his case (or continue it) in the Supreme Court. Accordingly, I have rejected the submission with respect to Part 52A Rule 33. 14 On behalf of the plaintiff Mr McClintock SC has asked that I should direct the defendant pay the costs of two counsel. Part 52A Rule 33(7) provides that a successful plaintiff is not entitled to the costs of briefing more than one counsel unless the court or the assessor otherwise orders. In the present case, I propose to leave the matter to the assessor. ********** Last Modified: 07/05/2002 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.