JONES v. SUTTON [No. 2] [2005] NSWCA 203

New South Wales Court of Appeal

JONES v. SUTTON [No. 2] [2005] NSWCA 203 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25/02/2005

JUDGMENT DATE: 16 June 2005

JUDGMENT OF: Beazley JA; Santow JA; Stein AJA

DECISION: 1. Rescind Order 7 made 26 November 2004.; 2. Vacate the costs orders made by the trial judge.; 4. Order that the respondent pay the appellant's costs of the hearing conducted before the jury pursuant to the provisions of s.7(3) of the Defamation Act 1974 (NSW) (the jury trial), limited to a hearing of 4 days together with the reasonable costs of preparation for the jury trial. ; 5. Order that each party otherwise pay his and her own costs of the proceedings at first instance. ; 6. Order that each party pay his and her own costs of the appeal.

CATCHWORDS: COSTS - pre-trial offer of compromise - specific principal offer and costs offer made - Pt 19A District Court Rules - consequences of failing to accept compromise offer - Pt 39A District Court Rules - court's discretion as to costs - "an exceptional case" - "avoidance of substantial injustice" - APPEAL - indemnity costs - court's discretion as to costs - s.76 Supreme Court Act - relevance of parties' conduct of proceedings - s.48A Defamation Act

Defamation Act 1974 (NSW) District Court Act 1973 (NSW) LEGISLATION CITED: District Court Rules 1973 (NSW) Supreme Court Act 1979 (NSW) Supreme Court Rules 1970 (NSW)

Afzal v Ford Motor Company Limited [1994] 4 All ER 720 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-961 Giannarelli v Wraith (1988) 165 CLR 543 CASES CITED: King and Mergen Holdings Pty Limited v McKenzie (1991) 24 NSWLR 305 Latoudis v Casey (1990) 170 CLR 534 Linfox Transport (Aust) Pty Ltd v Arthur Yates & Co Ltd [2004] NSWSC 943 Oshlack v Richmond River Council (1998) 193 CLR 72