Graham Charles Evans v John Fairfax and Sons Limited (Receivers and Managers Appointed); Alan Ramsey and John Alexander [1993] ACTSC 46 (23 April 1993)

SUPREME COURT OF THE ACT

GRAHAM CHARLES EVANS v. JOHN FAIRFAX AND SONS LIMITED (RECEIVERS AND MANAGERS
APPOINTED); ALAN RAMSEY and JOHN ALEXANDER
No. SC243 of 1990
Number of pages - 4
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Costs - Departing from general rule - Mixed success on issues - Defamation - Plaintiff succeeded in "nailing the lie" but failed in the event - Defendant refused to retract offending article causing plaintiff to sue.

Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729

Ritter v Godfrey (1920) 2 KB 47

McEwen v Siely (1972) 21 FLR 131

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Johnstone v Flying Spir Pty Ltd (ACTSC; Miles CJ; 24/7/87; unreported)

Australian Federation of Consumer Organisations Inc v Tobacco Institute (1991) 100 ALR 568

Sheehy v Mitchell Crane Hire [1991] ACTSC 25; (1991) 102 ACTR 1

Hally v Dennis [1955] HCA 41; (1955) 95 CLR 661

Cretazzo v Lombardi (1975) 13 SASR 4

Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 2) (1979) 42 FLR 213

Barclays Australia Ltd v Dam (SCNSW; 16/12/81; Yeldham J; unreported)

Degman Pty Ltd (In liq) v Wright (No. 2) (1983) 2 NSWLR 354

Verna Trading Pty Ltd v New India Assurance Co Ltd (1991) 1 VR 129

Re: Elgindata Ltd (No. 2) (1993) 1 All ER 232

Byrns v Davie (1991) 2 VR 568

HEARING

CANBERRA, 25 February 1993
23:4:1993

Counsel for the Plaintiff: Mr B Connell

Instructing solicitors: Messrs Macphillamy Cummins

and Gibson

Counsel for the Defendants: Mr H Nicholas QC, with
Mr M Lynch

Instructing solicitors: Messrs Freehill Hollingdale
and Page

ORDER

The Court orders that:

There be no order as to the costs of any party.

DECISION

HIGGINS J On 12 February 1993, I directed the entry of judgment in this matter in favour of the defendants. I reserved the question of costs.

2. Entry of judgment was stayed on the motion of the plaintiff until 25 February 1993.

3. On that day, the defendants and the plaintiff each contended that an order for costs should be made in their favour.

4. Mr Connell, for the plaintiff, supported his application upon the basis that the plaintiff, although he had failed to obtain judgment, had succeeded in vindicating his reputation.

5. He cited the references I made to the disapproving tone and the cynical righteousness displayed by the author of the matter complained of. It was likely that the author, at least, was aware that the plaintiff would be embarrassed with his colleagues and associates in view of the efforts he had made to avoid the suggestion that patronage played any part, however legitimate it might seem to the general public, in his career advancement. The reference to Mr Kerin was a lie, though whether it was known to be such by the author or any responsible officer of the first defendant, I cannot say.

6. The plaintiff sought to negotiate a settlement. His overtures were rejected. It meant then that the plaintiff had to sue to "nail the lie". (See Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729.) That was a legitimate issue to pursue in a defamation action.

7. In addition, until the day of the hearing, the defendants had maintained a plea of qualified privilege. It was then abandoned.

8. Publication was put in issue, although circulation figures, on which a finding as to publication and the extent of it would usually be based, were within the knowledge of the first defendant and admitted by interrogatories.

9. The defendants, to an extent, sought to raise truth of some allegations. It was put to the plaintiff that he had frustrated his Minister's desire to have another person as Secretary of his Department. He was accused of suppressing or, at least, understating a past Labor connection.

10. If the plaintiff had succeeded in persuading me that the ordinary reasonable reader would have drawn the pleaded defamatory inferences, then he would have received monetary vindication as well as vindication as a result of stated findings of a Court. Of course, had lesser imputations or those arising only in the appreciation of a limited class of persons been alleged and proved, the damages might have been less but would still have added to the vindication of the plaintiff.

11. It was the plaintiff's choice to proceed on the imputations as pleaded. As a result, the plaintiff failed to obtain an award of damages, although he succeeded in "nailing the lie" and vindicating what he perceived as a slur on his reputation amongst his colleagues. The entire litigation may have been avoided, in my view, had the defendants responded reasonably to the plaintiff's letter of demand and complaint and provided, by a published correction, a suitable and timely vindication of the plaintiff's reputation.

12. The general rule as to costs in civil litigation is as affirmed in Ritter v Godfrey (1920) 2 KB 47. Those principles were applied to the case of a successful criminal defendant in non-indictable matters by a Full Court of this Court in McEwen v Siely (1972) 21 FLR 131 and by the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534.

13. There are cases where, because of the relative differences between the parties or the nature of the litigation, a different general rule is applied (for example, Johnstone v Flying Spur Pty Ltd (ACTSC; Miles CJ; 24/7/87; unreported) - family law matters; Australian Federation of Consumer Organisations Inc v Tobacco Institute (1991) 100 ALR 568 - test case in public interest; Sheehy v Mitchell Crane Hire [1991] ACTSC 25; (1991) 102 ACTR 1 - workers compensation claims against insurers).

14. This case is not one where it is appropriate to start with other than the usual assumption that costs follow the event.

15. However, a party, even if successful, may be deprived of costs or ordered to pay the whole or part of an unsuccessful party's costs.

16. In Hally v Dennis [1955] HCA 41; (1955) 95 CLR 661, a solicitor avoided a claim that he render a bill and deliver up documents by abandoning his claim for costs. The clients' costs of the proceedings were ordered to be paid by the solicitor.

17. In Cretazzo v Lombardi (1975) 13 SASR 4 a successful party was ordered to pay the costs of litigating issues on which that party had failed.

18. Where a party gave apparent but misleading cause to be sued, that party was deprived of costs, though successful (see Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 2) (1979) 42 FLR 213).

19. Conversely, a party successful on an issue might be granted costs on an indemnity basis if the issue had been unreasonably persisted in or if the trial was unreasonably prolonged by it (see, for example, Barclays Australia Ltd v Dam (SCNSW; 16/12/81; Yeldham J; unreported); Degman Pty Ltd (In liq) v Wright (No. 2) (1983) 2 NSWLR 354).

20. A persistence in "trial by ambush" techniques can deprive a successful party of costs. Indeed, in Verna Trading Pty Ltd v New India Assurance Co Ltd (1991) 1 VR 129, an insurer who refused to disclose its reasons for declining indemnity until the morning of the trial was ordered by Beach J to pay the unsuccessful plaintiff's costs, up to and including that day, on an indemnity basis. On appeal, Kaye and McGarvie JJ supported Beach J's order. Ormiston J, although not dissenting from the majority view, did not feel "comfortable" with it. His Honour felt that a deprivation of costs would have sufficed.

21. Nevertheless, it is clear that the Court's discretion may, properly, be exercised so as to deprive even a successful party of costs where it has conducted itself so as to unreasonably attract or prolong litigation or where it is otherwise just to do so (see also Re: Elgindata Ltd (No. 2) (1993) 1 All ER 232).

22. It is not desirable that cross-orders for costs be made in a matter, as Gobbo J noted in Byrns v Davie (1991) 2 VR 568.

23. Therefore, rather than, for example, ordering the defendants to pay the costs of the issues on which the plaintiff succeeded, on an indemnity basis, and ordering the plaintiff to pay the costs of the defendants on the issue upon which the defendants succeeded, it seems to me that justice is best served by making no order as to the costs of any party.

24. I, therefore, refuse each application for costs.