Lewincamp v ACP Magazines Limited (No 2) [2008] ACTSC 73 (13 August 2008)

Last Updated: 15 September 2008

LEWINCAMP v ACP MAGAZINES LIMITED (NO 2)

[2008] ACTSC 73 (13 AUGUST 2008)

INTEREST ON DAMAGES – damages for defamation – whether 4 per cent appropriate rate – rate not to be applied as if all damage occurred at time of publication

Held: rate of 3 per cent appropriate in the circumstances.

COSTS – claim for indemnity costs – Calderbank letter – allegation of unreasonable conduct prior to Calderbank letter

Held: indemnity costs awarded for period after Calderbank letter, not awarded for period prior to letter.

INTEREST ON COSTS – default position under Court Procedure Rules 2006 (ACT) r 1617 interest payable from date costs assessed – no detailed submissions – parties given liberty to make further submissions

VINDICATION ORDER – order sought under Civil Law (Wrongs) Act 2002 (ACT) s 122 – relevant publication no longer published – not appropriate to make vindication statement part of court orders

Held: no vindication order should be made.

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397

Lewincamp v ACP Magazines Ltd [2008] ACTSC 69

MPB (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657

Osborne v Kelly [1999] SASC 486; (1999) 75 SASR 392

Dal Pont, GE, Law of Costs (LexisNexis Butterworths, 2003)

Court Procedure Rules 2006 r 1617

Civil Law (Wrongs) Act 2002 (ACT) s 122

No. SC 578 of 2004

Judge: Besanko J

Supreme Court of the ACT

Date: 13 August 2008

IN THE SUPREME COURT OF THE )

) No. SC 578 of 2004

AUSTRALIAN CAPITAL TERRITORY )

FRANK LEWINCAMP

ACP MAGAZINES LIMITED

ORDER

Judge: Besanko J

Date: 13 August 2008

Place: Adelaide (via videolink with Canberra)

THE COURT ORDERS THAT:

1. The defendant pay to the plaintiff interest on the damages awarded to the plaintiff fixed in the sum of $47,866.44.

2. The defendant pay to the plaintiff his costs of action assessed on the following basis:

(1) a party and party basis up to and including 12 June 2007;

(2) an indemnity basis from 12 June 2007 up to but excluding the application for these orders; and

(3) a party and party basis in relation to the application for these orders.

3. Liberty to the parties to make further submissions in writing on the question of interest on costs; the plaintiff within 14 days and the defendant within 28 days.

BESANKO J:

1. On 23 July 2008 I entered judgment for the plaintiff against the defendant in this action in the sum of $375,000. I reserved for further consideration questions of interest, vindication of the plaintiff’s reputation and costs.

2. The plaintiff seeks the following orders:

1. That the defendant pay to the plaintiff interest on the damages awarded to him at a rate of 3 per cent from the date of the publications to the date of judgment being a sum of $47,866.44;

2. That the defendant pay to the plaintiff his costs of the proceedings, including any applications in the proceedings, on an indemnity basis;

3. That the defendant pay to the plaintiff interest on the plaintiff’s costs from the date of judgment; and

4. That the Court make a vindication order under s 122 of the Civil Law (Wrongs) Act 2002 (ACT) against the defendant.

Interest on damages

3. Both parties referred to MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 and the statement in that case that the appropriate interest rate on damages for non-economic loss is 4 per cent. The defendant submits that that is no longer the appropriate interest rate having regard to commercial interest rate trends since the decision in Gogic. I reject that submission. A starting point of 4 per cent has been adopted in more recent times both in this jurisdiction and other jurisdictions. Both parties accept that the rate cannot be applied as if all the damage occurred in April 2004, but they dispute the appropriate reduction. In my opinion, the rate adopted should reflect the fact that greater damage to the plaintiff in terms of personal distress and hurt, and damage to his reputation occurred at the beginning of the period and although I recognise that views may differ as to the appropriate reduction it seems to me that I should adopt the rate suggested by the plaintiff of 3 per cent. I will order the defendant to pay the plaintiff interest on the damages awarded to the plaintiff fixed in the sum of $47,866.44.

Costs of action

4. The plaintiff claims that the defendant should pay all his costs of the action on an indemnity basis. The defendant accepts that it should pay the plaintiff’s costs of action and accepts that those costs should be on an indemnity basis after 12 June 2007. It submits that before that date the costs should be assessed on a party and party basis. The defendant concedes that it should pay indemnity costs after 12 June 2007 because the plaintiff sent it a Calderbank offer on 22 May 2007 giving the defendant 21 days within which to accept the offer. The offer was not accepted by the defendant and it was much lower than the amount ultimately awarded to the plaintiff by way of damages. That concession by the defendant is a proper one.

5. The plaintiff’s application for indemnity costs prior to 12 June 2007 is based on what was said to be the defendant’s unreasonable conduct in denying the falsity of the defamatory statements and in refusing to apologise to the plaintiff. The matters it relies on are identified in its written submissions (paragraphs 15-23) and I will not repeat them. Some of the matters identified by the plaintiff are matters I took into account in concluding that there were aggravating factors and that it was appropriate to make an award of aggravated damages: Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at [364]- [366]. Even if, as the plaintiff submits, I can take those matters into account on the question of costs they do not, in my opinion, rise to the level required to justify an award of costs on an indemnity basis. The relevant factors are well-known and I need not repeat them. It is sufficient for me to refer to Colgate- Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397. I do not think any of those factors are present in this case.

6. I will order that the defendant pay the plaintiff’s costs of action on a party and party basis up to and including 12 June 2007 and thereafter on an indemnity basis save and except for the costs of the application for the present orders which should be paid by the defendant and assessed on a party and party basis.

Interest on costs

7. The relevant rule of Court is r 1617 of the Court Procedure Rules 2006. It is not a model of clear drafting. It provides, relevantly:

(4) Unless the court otherwise orders, interest is payable on an amount awarded for costs that is unpaid at any time—

(a) ...

(b) from the day the costs were assessed or another date decided by the Court.

8. The fee agreements between the plaintiff and his solicitors and between his solicitors and counsel were put before me. Fees are recoverable in the event that the plaintiff is successful and interest is payable on overdue accounts. The submissions on the question of whether interest on costs should be payable from the date of judgment (that is, the incipitur rule) or the date of assessment (that is, the allocatur rule) were brief and focused on whether a general rule one way or the other was embodied in r 1617. I think that what can be said is that under r 1617 the default position is that interest on costs is payable from the date the costs are assessed.

9. It seems to me that this issue raises a number of questions which have not been the subject of submissions. I refer to the discussion in the reasons for judgment of Doyle CJ in Osborne v Kelly [1999] SASC 486; (1999) 75 SASR 392 and ch 19 of Law of Costs, GE Dal Pont (LexisNexis Butterworths, 2003). I am not prepared to make an order at this stage. However, I will give the parties liberty to make further submissions if so advised. If they do not exercise that liberty the default position will apply.

Vindication order

10. A form of statement was put forward by the plaintiff and he sought an order in relation to that statement under s 122 of the Civil Law (Wrongs) Act 2002 (ACT). That section is in the following terms:

(1) If an offer to make amends is not made, or no reasonable offer of amends is made, the aggrieved person may apply to the Supreme Court for an order to vindicate his or her reputation.

(2) The order may only be sought if the aggrieved person has given the publisher at least 7 days written notice of intention to apply to the Supreme Court for an order to vindicate his or her reputation.

(3) The notice must contain sufficient information to identify the matter in question.

(4) An order under subsection (1) does not prevent the aggrieved person bringing an action.

11. Section 122 has since been repealed. Nevertheless it is common ground that it applies to this action. The parties told me that there is no reported authority on the section. I was referred to what were said to be the relevant passages in the explanatory memorandum for the section. In particular, I was referred to the following passage:

Similarly, failure on the part of the defendant, will result in the plaintiff being able to seek an expedited order vindicating that person’s reputation in addition to any other right the plaintiff might have.

For example: Continuing the example above, where those responsible for the article make no or inadequate effort to correct the error, Judy Smith should be able to apply to Court for an order vindicating her reputation. Such an order may, of itself, reduce any injury. It would leave open the prospect of a later action for damages (which might be considerably higher if those responsible do not publish a correction).

12. The defendant no longer publishes The Bulletin magazine and even if it were appropriate to order the defendant to publish the statement in another way, there is no information before me which would enable me to make a decision as to an appropriate order. In those circumstances, the plaintiff’s primary submission was that the vindication statement be included as an order of the Court. That does not seem to me an order envisaged by s 122. I decline to make such an order because, in my opinion, it is not an order envisaged by the section. In those circumstances it is not necessary for me to consider the other submissions of the defendant as to why I could not and should not make an order under s 122 in the circumstances of this case.

13. The orders of the Court are as follows:

1. The defendant pay to the plaintiff interest on the damages awarded to the plaintiff fixed in the sum of $47,866.44.
2. The defendant pay to the plaintiff his costs of action assessed on the following basis:

(1) a party and party basis up to and including 12 June 2007;

(2) an indemnity basis from 12 June 2007 up to but excluding the application for these orders; and

(3) a party and party basis in relation to the application for these orders.

3. Liberty to the parties to make further submissions in writing on the question of interest on costs; the plaintiff within 14 days and the defendant within 28 days.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Besanko.

Associate:

Date: 2008

Counsel for the plaintiff: Mr P W Gray SC

Solicitor for the plaintiff: Colquhoun Murphy

Counsel for the defendant: Mr M Richardson

Solicitor for the defendant: Johnson Winter & Slattery

Date of hearing: 6 August 2008

Date of judgment: 13 August 2008