Coates v Harbour Radio Pty Ltd & Anor [2009] NSWSC 1047

New South Wales Supreme Court

CITATION : Coates v Harbour Radio Pty Ltd & Anor [2009] NSWSC 1047

HEARING DATE(S) : 28 August 2009, 3 September 2009

JUDGMENT DATE : 1 October 2009

JUDGMENT OF : Fullerton J

DECISION : 1. The motion is dismissed. 2. The plaintiff is to pay the defendants' costs.

CATCHWORDS : COSTS - interest on costs after judgment

Associations Incorporation Act 1981 (Vic) LEGISLATION CITED : Civil Procedure Act 2005 Defamation Act 1974 Supreme Court Act 1970

Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292 Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036 CASES CITED : Grogan v Thiess Contractors Pty Ltd and Anor [2000] NSWSC 1101 Lahoud v Lahoud [2006] NSWSC 126 Lolomanaia v RTA [2002] NSWSC 918

John Dowling Coates (Plaintiff) PARTIES : Harbour Radio Pty Ltd (1st Defendant) Alan Jones (2nd Defendant)

FILE NUMBER(S) : SC 2004/20443

COUNSEL : G Lucarelli (Plaintiff) ATS Dawson (Defendants)

SOLICITORS : Kennedys (Plaintiff) Banki Haddock Fiora (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FULLERTON J

1 OCTOBER 2009

2004/20443 JOHN DOWLING COATES v HARBOUR RADIO PTY LIMITED & ANOR

JUDGMENT

1 HER HONOUR: By notice of motion filed 29 May 2009 the plaintiff seeks an order that the defendants pay interest on costs pursuant to s 101(4) of the Civil Procedure Act 2005. 2 Section 101(4) provides: "The court may order that interest is to be paid on any amount payable under an order for the payment of costs." The primary proceedings 3 In the primary proceedings the plaintiff successfully sued Mr Jones and Harbour Radio Pty Limited in defamation in respect of a number of imputations which he claimed were conveyed when Mr Jones broadcast his views concerning certain events that occurred during and immediately following the rowing final of the Women's Eights in the 2004 Olympic Games. At the time of the broadcast the plaintiff was the President of the Australian Olympic Committee ("the AOC") and a member of the Executive of the Australian Olympic Committee Inc ("AOC Inc"), an incorporated association under the Associations Incorporation Act 1981 (Vic). 4 In a trial conducted under s 7A of the Defamation Act 1974, a jury found that the following imputations had been conveyed: As to the first broadcast : (a) The plaintiff practised a cover-up in relation to Sally Robbins in his role as a leader of the Olympic movement; (b) The plaintiff's leadership in dealing with the Sally Robbins' incident was sadly lacking; (c) The plaintiff bullied rowers into saying what he wanted them to say after the Sally Robbins' incident. As to the second broadcast : (a) The plaintiff ordered a cover-up over the collapse of Sally Robbins in the Olympic final of the rowing eights; (b) The plaintiff in his role as head of the AOC and as Chef de Mission bullied the crew of Sally Robbins into saying what he wanted them to say at a news conference at Athens after the collapse of Sally Robbins; (c) The plaintiff in his role as head of the AOC was incompetent in the manner in which he handled the Sally Robbins' affair. As to the third broadcast: (a) The plaintiff in his role as an Olympic leader was incompetent in his handling of the Sally Robbins' business. 5 On 4 April 2008 Adams J awarded the plaintiff $360,000 for the damage to his reputation and to compensate him for his injured feelings for what his Honour described as the "bullying imputations, the cover-up imputations and the incompetence imputations". He reserved the question of judgment interest and costs to enable the parties to prepare submissions (Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292). 6 On 12 September 2008 the defendants consented to an order for the payment of judgment interest from the date of the filing of the statement of claim to the date of judgment, and to an order that they pay the plaintiff's costs on a party - party basis up to 30 November 2006 and thereafter on an indemnity basis. No application was made at that time for an order that the defendants pay interest on costs. However, in correspondence dated 12 August 2008, the plaintiff's solicitors advised that if costs could not be agreed an application under s 101(4) would be made in due course. In that correspondence the interest claimed on costs was calculated in accordance with the statutory scale against what were described as "our client's costs of the proceedings". The proceedings for the order under s 101(4) 7 The affidavit filed in support of the notice of motion was sworn by Ms Giles, the solicitor with carriage of the current proceedings. She is also employed by the firm of solicitors who acted for the plaintiff in the primary proceedings from September 2006. The plaintiff was represented by another firm of solicitors at the time the proceedings were commenced. The plaintiff's claim for interest was calculated by Ms Giles by reference to the whole of the costs of the primary proceedings. She also deposed to the fact that the plaintiff had paid all tax invoices within one month of their issue. 8 Prior to the hearing the plaintiff served an affidavit from Mr Mercer, the Director of Corporate Services for the AOC Inc, which addressed the fact that after service of the notice of motion and Ms Giles' supporting affidavit the defendants sought and obtained confirmation from the plaintiff's solicitors that the plaintiff did not personally pay the legal costs associated with the primary proceedings either during the currency of those proceedings or at any time thereafter. Instead the tax invoices, rendered by his solicitors between June 2005 to the date of judgment and thereafter to 30 March 2009, were raised in the name of AOC Inc and paid by that entity. The defendants must have believed that to be the case, even if they did not know it as a fact, given that in June 2008 the plaintiff directed that the judgment sum in the amount of $360,000, and judgment interest in the amount of $28,563.29, be paid directly to the AOC Inc. Mr Mercer deposed to the fact that these payments were made in partial discharge of the plaintiff's obligation under a private arrangement he had with the AOC Inc to repay the costs of the litigation in the event that an award was made in his favour, and to do so as a first priority before taking the benefit of any award. In the result, as at the date of the hearing of the motion, of the $580,654 paid by the AOC Inc to the solicitors retained to act for the plaintiff in the primary proceedings, the plaintiff has repaid $388,563. The plaintiff has not as yet applied for costs to be assessed as provided for in Division 11 of Part 3.2 of the Legal Profession Act 2004, the solicitors retained by the AOC Inc having not settled a bill of costs to enable that assessment to be made. The hearing before me proceeded on the assumed basis that after assessment the AOC Inc is likely to recover the difference between the costs they have paid and what the plaintiff has repaid under the funding arrangement. The plaintiff is expected to receive the residue.