New South Wales Supreme Court CITATION : Greig v WIN Television NSW Pty Limited [2009] NSWSC 877 HEARING DATE(S) : 30 July 2009 JURISDICTION : Civil JUDGMENT OF : McClellan CJatCL EX TEMPORE JUDGMENT DATE : 30 July 2009 DECISION : 1. Verdict and judgment for the plaintiff. 2. Defendant to pay the plaintiff's costs. CATCHWORDS : COSTS - defamation - party/party costs - indemnity costs - rate of interest CASES CITED : Davis v Nationwide News Pty Ltd [2008] NSWSC 946 MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657 PARTIES : Michelina Greig (Pltf) WIN Television (Def) FILE NUMBER(S) : SC 2007/20207 COUNSEL : T K Tobin QC/E A Cheeseman (Pltf) B R McClintock SC/M Lynch (Def) SOLICITORS : Bussoletti Lawyers (Pltf) Banki Haddock Fiora (Def) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST McCLELLAN CJ at CL THURSDAY 30 JULY 2009 20207/07 GREIG v WIN TELEVISION PTY LIMITED JUDGMENT 1 HIS HONOUR: I gave judgment in this matter on 10 July 2009 when I determined that the plaintiff should have an award of damages in the sum of $200,000. Before me this morning are two questions: the appropriate award for interest and for costs. The parties have been able to reach an accord in relation to the question of costs. 2 The proceedings were commenced when a statement of claim was filed on 6 June 2007. On 5 March 2008 the plaintiff made an offer of settlement in the sum of $150,000 plus costs. The defendant neither responded to that offer nor on any occasion made any offer to settle the proceedings. In those circumstances, the plaintiff ask for, and the defendant cannot resist, an order for costs which provides for party/party costs up until 5 March 2008 and an award for indemnity costs from that date. 3 With respect to the matter of interest, the plaintiff seeks interest awarded at the rate of 4 percent. The defendant submits that the appropriate rate would be 3 percent. 4 The principles by which a court must determine the rate of interest in a defamation case have been discussed on a number of occasions. Most recently I discussed them in Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [12]-[14]. In that decision I drew significantly on the reasons for the decision of the High Court in MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657. Although the Uniform Civil Procedure Rules, as they now are, provide for court rates of interest with respect to an award of damages, it has long been recognised that defamation proceedings fall into a discrete category of cases when a court is considering in the exercise of its discretion the appropriate rate for interest. 5 It is commonly accepted that the primary damage to a plaintiff's reputation and injury to feelings is occasioned at the time of publication and shortly thereafter with both elements diminishing over time. For that reason, it is common to award interest at a rate which allows for the diminishing impact of the published libel. This, of course, is different to the circumstances where a plaintiff is pt out of money or damages with constant injury occurring by reason of the harm occasioned by the defendant's actions or a failure in a defendant to meet a monetary obligation which existed in the plaintiff. 6 Counsel have indicated to me that during the period since the publication of the defamation in the present case the court rate of interest has varied between 9 and 10 percent. As I found in my primary judgment, the injury to the plaintiff's reputation and the hurt to her feelings in the present case were significant. I am satisfied that both aspects of the injury to her continued for a significant period after the published defamation. This was because, not only of the circumstances of its publication, but also because of the position which the plaintiff held in her local community. I am satisfied that the damage to her reputation in the minds of some people will have continued to the time of the trial, but one would expect it to have been significantly diminished by the award which has now been made. 7 The finding in my primary judgment indicated that I am satisfied that the hurt to the plaintiff's feelings continued for a significant period and was reactivated during the course of the trial. I have reflected my findings in that respect in the award which includes an award of aggravated damages. 8 In the circumstances of this case, although the plaintiff asks for an award at the rate of 4 percent, having regard to the matters to which I have referred and by consideration of the appropriate principles, I am satisfied that interest should be awarded at the rate of 3.5 percent per annum. 9 I make an order for verdict and judgment for the plaintiff in the sum of $216,333 and secondly I order the defendant to pay the plaintiff's costs assessed on a party/party basis until 5 March 2008 and thereafter on an indemnity basis. 10 The matter came before me this morning for consideration of the orders which were appropriate having regard to my primary judgment. Apparently the defendant made an offer in relation to the issue of costs consistent with the position which was ultimately reached by agreement in the court, however, the parties were not able to agree the appropriate rate for interest. In those circumstances, the defendant seeks that I make no order for costs of today's proceedings. 11 I will not do that. It was necessary for the parties to come before the court and argument ensued in relation to the appropriate rate of interest, an argument which was resolved in the plaintiff's favour, and, accordingly, the orders which I have made in the plaintiff's favour include the costs of today. ********** 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. 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