Hastings v Random House Australia Pty Ltd [1999] NSWSC 101 (22 February 1999)

Last Updated: 24 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Hastings v Random House Australia Pty Ltd [1999] NSWSC 101

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20231/96

HEARING DATE{S): 9-11/2/99, 19/2/99

JUDGDMENT DATE: 22/02/1999

PARTIES:

Gary Hastings (Plaintiff)

Random House Australia Pty Limited (Defendant)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

M.G. Lynch (Plaintiff)

T.D. Blackburn/C.M. Traill (Defendant)

SOLICITORS:

Craddock, Murray, Neumann (Plaintiff)

Phillips Fox (Defendant)

CATCHWORDS:

Costs

Defamation proceedings

Qualified privilege and s 13 defence pleaded but later abandoned

Defendant successful

Effect of pleadings on costs order

ACTS CITED:

Defamation Act

DECISION:

See paragraph 10

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Monday 22 February 1999

20231/96 GARY HASTINGS v RANDOM HOUSE AUSTRALIA PTY LIMITED

JUDGMENT

1 HIS HONOUR: Following the jury's verdict on 11 February 1999, I directed the entry of judgment for the defendant but reserved the question of costs. At that time counsel for the defendant sought costs but this application was opposed by counsel for the plaintiff upon the basis that the defendant had only on the day of the trial abandoned the defence of qualified privilege and the defence arising under s 13 of the Defamation Act. I stood the matter over to allow further argument and to afford the parties the opportunity to put on any evidence concerning the significance of the defences having been raised and then abandoned.

2 The plaintiff, in opposing the order sought by the defendant, relied upon an affidavit of his solicitor, Mr Phillips, which was sworn on 15 February 1999. The defendant relied upon an affidavit of its solicitor, Mr Potter, sworn on 18 February 1999. Those affidavits I have considered.

3 Both counsel have now made submissions based upon the evidence to be found in the two affidavits to which I have referred.

4 For his part Mr Lynch submitted that the defence of qualified privilege ought not to have been pleaded in the first instance and his first submission was that in consequence the plaintiff should not be ordered to pay any of the defendant's costs. However, I do not accept that submission. I do not consider the Court would be justified in concluding that there was any lack of responsibility in pleading qualified privilege in this case nor in pleading the defence under s 13 of the Defamation Act.

5 Ordinarily of course in litigation costs follow the event but it seems to me that in this case an injustice would be done were I to allow the defendant to recover all its costs. A defendant must appreciate that when a defence is pleaded the pleading raises an issue which both sides must address. Here the issue of qualified privilege was a very significant issue and Mr Phillips in his affidavit of 15 February 1999 has identified the sort of preparations which the pleading of this defence called for by the plaintiff. No doubt the same sort of considerations arose for the defendant in preparing to support the defence.

6 The defence under s 13 of the Defamation Act to the effect that the matter complained of was published under such circumstances that the plaintiff was unlikely to suffer harm would not have led, in the circumstances of this case, to any significant costs being incurred in addressing it. Indeed, as Mr Blackburn acknowledged, if the jury had concluded that the imputations were conveyed and the plaintiff was identified, the defence could not have been sustained, because these imputations were grave.

7 As the trial proceeded the central issue was whether or not the matter complained of identified the plaintiff. On that issue the plaintiff failed and the defendant succeeded, so that it seems to me it is appropriate that the defendant should recover its reasonable costs of the trial itself.

8 The costs related to the issues raised by the abandoned defences are another matter. In my opinion it would be unjust to the plaintiff if the costs order made by the Court did not take into account that costs were incurred by the plaintiff in preparing to meet the abandoned defences and that costs were doubtless incurred by the defendant in seeking to prove the defence of qualified privilege.

9 Having reflected on the evidence contained in the affidavits and the submissions of counsel, I have concluded that justice requires a special order to limit the costs recoverable by the defendant from the plaintiff concerning costs preliminary to the hearing which began on 9 February 1999. I propose to order that the plaintiff pay only one half of such costs.

10 I order the plaintiff to pay the defendant's costs incurred in relation to the hearing of this cause from 9-11 February 1999, and one half of such costs as were earlier incurred, with all such costs to be paid on a party and party basis.

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LAST UPDATED: 22/02/1999