KERAMIANAKIS & ANOR v REGIONAL PUBLISHERS PTY LTD [NO. 2] [2008] NSWCA 3 (6 February 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
KERAMIANAKIS & ANOR v REGIONAL PUBLISHERS PTY LTD [NO. 2] [2008] NSWCA 3
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40545/06

HEARING DATE(S):
On written submissions

JUDGMENT DATE:
6 February 2008

PARTIES:
Constantine Keramianakis - First Appellant
Albret Smagarinsky - Second Appellant
Regional Publishers Pty Ltd - Respondent

JUDGMENT OF:
Beazley JA Basten JA Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 10264/01

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

LOWER COURT DATE OF DECISION:
7 August 2006


COUNSEL:
A Henskens - Appellants
J S Wheelhouse SC - Respondent

SOLICITORS:
Pryor Tzannes & Wallis - Appellants
Johnson Winter & Slattery - Respondent

CATCHWORDS:
COSTS - no objection to competency of appeal made and appeal held to be incompetent - parties had equal prospects of success on merits of appeal - Uniform Civil Procedure Rules 2005 (NSW), r 42.1, r 51.41

LEGISLATION CITED:
[<i>District Court Act</i>] 1973 (NSW)
[<i>Suitors' Fund Act</i>] 1951 (NSW), s 6A
Supreme Court Rules 1970 (NSW), Part 51, r 25
Uniform Civil Procedure Rules 2005 (NSW), r 42.1, r 51.41

CATEGORY:
Consequential orders

CASES CITED:
[<i>Keramianakis v Regional Publishers Pty Ltd</i>] [2007] NSWCA 375

TEXTS CITED:


DECISION:
Applications for costs dismissed.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40545/06

DC 10264/01

BEAZLEY JA

BASTEN JA

ROTHMAN J

6 February 2008

Constantine KERAMIANAKIS and Anor v REGIONAL PUBLISHERS PTY LTD [NO. 2]

Judgment

1 THE COURT: Judgment in this matter was delivered on 21 December 2007: see Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375. The appeal was dismissed and no order was made as to costs. In the event that either party sought an order in relation to the costs of the appeal, the parties were directed to file written submissions within 14 days.

2 Each party has now sought an order that costs be paid by its opponent or opponents. The Respondent sought such an order primarily on the basis that, the appeal having been dismissed, costs should follow the event (in accordance with the principle contained in Uniform Civil Procedure Rules 2005 (NSW), r 42.1). The Appellants sought their costs on the basis that the Respondent had only succeeded because the appeal was found to be incompetent and, not having taken an objection to competency in a timely fashion, it should not obtain its costs of the appeal but should pay costs, in accordance with the principle found in Supreme Court Rules 1970 (NSW), Part 51, r 25 (as in operation at all material times, but which has now been replaced by UCPR r 51.41). Both these submissions should be rejected and the order proposed in the first judgment in this matter should be affirmed.

3 The rule with respect to objection to competency may operate in a range of circumstances. In its terms, it purports to operate only where a respondent objects to the competency of an appeal. However, where it appears to the court that it may not have jurisdiction to deal with a matter, it is incumbent on the court to consider the question of its own jurisdiction, and to give the parties an opportunity to address on the question, whether or not the respondent has raised the matter expressly. The purpose of the rule is to encourage respondents who take objection to the competency of an appeal to do so at an early date, so that both parties may consider their positions before the full costs of preparation and hearing have been incurred. Although an objection will often not be determined until the hearing of the appeal, the appellant is on notice that the costs of the proceedings may be wasted. In some cases the risk can be ameliorated by filing an application for leave where that is arguably a necessary and sufficient step.

4 Where, as in this case, the question of jurisdiction was raised by the Court in the course of the hearing, whilst considering the orders which might be available to it, the policy underlying the rule with respect to early objections to competency would have limited operation. Furthermore, because the lack of jurisdiction appears to have resulted from the combined effect of a series of amendments to the District Court Act 1973 (NSW), the lacuna in the appeal rights which the parties might have expected to be available appears to have come about inadvertently (if Parliament can so operate) rather than by way of a specific targeted reform. In those circumstances, the parties having acted reasonably in commencing and defending the appellate proceedings, this might have been a case where the costs could appropriately have been borne by a public fund. However, that option is not available: c.f. s 6A of the Suitors’ Fund Act 1951 (NSW).

5 It may also be appropriate to take into account the merits of the arguments which were addressed in the first judgment of the Court. The jury’s verdict was concerned with three imputations pleaded by each of the appellants. Imputation (a) was held by the jury not to have been made out in relation to either appellant: each appellant appealed against those findings, but the Court indicated that it would have rejected those challenges. The first appellant also challenged the findings of the jury that imputations (b) and (c) were not made out in relation to him. The Court indicated that it would have been minded to set aside those findings if it had jurisdiction. A challenge by the appellants based on procedural unfairness flowing from the refusal of the trial judge to permit a right of reply was also rejected. Thus one of the appellants and the respondent were partly successful on the merits of the challenges raised in the appeal. In proceedings in which each imputation involves a separate cause of action, it is not inappropriate to consider success or failure by reference to the individual imputations and the challenges brought. Treating the appellants (who were jointly represented) as having a common interest, in broad terms, it can thus be said that the parties were roughly equal in the measure of success they enjoyed on the merits of the matters raised.

6 It is unfortunate that the appeal proved incompetent and it may be that the first appellant at least has suffered a degree of injustice. Nevertheless, the interests of justice indicate that it is appropriate to leave the costs where they fell, both by reference to the jurisdictional outcome and by reference to the considerations in relation to the merits of the case.

7 In the result, the further submissions with respect to costs have not persuaded the Court that any different order should be made from that proposed by the majority in the first judgment.

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AMENDMENTS:


07/02/2008 - No changes were made - Paragraph(s) N/A


LAST UPDATED:
7 February 2008