Whitlam v National Roads and Motorists' Association Limited [2006] NSWSC 872

New South Wales Supreme Court

CITATION : Whitlam v National Roads and Motorists' Association Limited [2006] NSWSC 872

HEARING DATE(S) : 22 August 2006; 1 September 2006

JUDGMENT DATE : 1 September 2006

JUDGMENT OF : Bergin J

DECISION : Declarations and orders made.

CATCHWORDS : DECLARATIONS AND ORDERS

CASES CITED : Whitlam v National Roads and Motorists' Association Limited [2006] NSWSC 766

PARTIES : Nicholas Richard Whitlam - Plaintiff National Roads and Motorists' Association Limited - Defendant

FILE NUMBER(S) : SC 50185/2004

NJ Owens - Plaintiff COUNSEL : RM Smith SC/ V Kerr - Defendant (22 August 2006) Ms A Beardow - Defendant (1 September 2006)

SOLICITORS : Phillips Fox - Plaintiff Corrs Chambers Westgarth - Defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

1 SEPTEMBER 2006

50185/04 NICHOLAS RICHARD WHITLAM v NATIONAL ROADS AND MOTORISTS' ASSOCIATION LIMITED JUDGMENT 1 I delivered my reasons for judgment in this matter on 3 August 2006: Whitlam v National Roads and Motorists' Association Limited [2006] NSWSC 766 (the judgment). On 22 August 2006 and 1 September 2006 I heard argument in relation to: (1) the declarations and orders that should be made in the matter consequent upon the judgment; and (2) the orders in relation to the costs of the proceedings. The defendant requested that I give further reasons in relation to these aspects of the matter and it is convenient to use the same terminology in these reasons that was utilised in the judgment. 2 There is no issue in relation to the declarations and orders to be made in respect of the indemnity in relation to the 2GB proceedings, however the parties are at issue in respect of the declarations and orders that should be made in respect of the discontinued proceedings against Nine and the proposed proceedings against Nine. The parties are also at issue in respect of the orders that should be made in respect of the costs of the proceedings. The plaintiff seeks an order for indemnity costs and resists any order that he pay the defendant's costs thrown away by reason of the abandonment on the second day of the trial, 30 May 2006, of some of his claims for relief. The defendant resists an order for indemnity costs and seeks an order that the plaintiff pay its costs thrown away by the abandonment of his claims. Declarations and orders 3 The plaintiff submitted that on the basis of the judgment, he is entitled to an indemnity for costs incurred in the discontinued proceedings against Nine and costs to be incurred in the proposed proceedings against Nine, subject to an obligation to repay such costs if he is not vindicated by way of apology, settlement, verdict or judgment in his favour. The defendant submitted that on the basis of the judgment, the plaintiff is only entitled to indemnification after the result of the proposed proceedings is known. It is submitted that the indemnity is subject to the plaintiff "first" being vindicated in the proposed proceedings against Nine. 4 The relevant paragraphs of the judgment upon which the parties relied in support of their respective submissions are as follows: 100 I am of the view that the Deed indemnifies the plaintiff for liabilities incurred in defending an "allegation" including a defamatory imputation and that the bringing of defamation proceedings is a process by which such an allegation is defended, albeit that the director is the moving party in the proceedings. I am satisfied that the parties to the Deed intended that if the plaintiff, acting as an officer of the defendant, was subjected to an allegation that amounted to a defamatory imputation, he was to be indemnified for costs in defending it including not only by seeking an apology without bringing proceedings but also to defend himself against the defamatory imputation by bringing proceedings to vindicate his reputation which was damaged by reason of the performance of his duties. I am also satisfied that the indemnity for those costs is limited to cases in which the plaintiff is vindicated either by way of apology, settlement or verdict and judgment in his favour.