Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 639 (28 June 1999)

Last Updated: 5 July 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 639

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223/1995

20592/1996

HEARING DATE{S): 25 June 1999

JUDGMENT DATE: 28/06/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

G O'L Reynolds S.C.

R G McHugh

(Plaintiff)

J S Wheelhouse

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

ACTS CITED:

DECISION:

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

(AT GRAFTON)

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 28 JUNE 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LTD

(Defendant)

JUDGMENT (Costs)

1 Further to my orders made on 23 June 1999 (NSWSC 619: DLJT: 44), the plaintiff seeks costs.

2 I granted leave to the defendant to amend its case on justification and dismissed the plaintiff's Motion to set aside the defendant's subpoena to the New South Wales Police Service (paragraph 531).

3 The defendant, by reason of its success on each of the relevant Motions, also seeks costs.

4 I gave further directions for the conduct of the case on 25 June 1999 (DLJT: 45). On that day I heard submissions from Mr Reynolds S.C. and Mr Wheelhouse. They were not lengthy. I decided to keep the time spent on costs arguments brief to maintain some sensible degree of proportion and fairness given the duration of the hearing (see dates noted on cover sheet of DLJT: 44).

5 The plaintiff contends that the "usual" orders for costs should be made consequent upon the defendant being granted leave to amend. Those usual orders are the costs of the amendment application itself, costs occasioned by the amendment and any costs arising from the adjournment.

6 It is also sought that the order for costs be on an indemnity basis. It was candidly acknowledged that an order of this nature would be exceptional, but it was submitted that the circumstances attending the application itself and its consequences warrant the making of this kind of order. This is especially so given the duration and expense, the massive "transmogrification" of the defendant's case consequent upon the grant of leave and the proposition that without such an order costs would not operate, in justice, as "compensatory".

7 It is submitted for the plaintiff that the amendment application and the subpoena application were so intertwined that there was no point in drawing any fine, or any distinction at all, for the purposes of making any costs order. I agree with the submission (see paragraphs 186, 216 and 235, for example, of my judgment of 23 June 1999).

8 For the defendant costs are sought and, indeed it was suggested, there would be an entitlement on an indemnity basis, by reason of the nature of the allegations made by the plaintiff in opposition to the amendment and in support of his subpoena application (see paragraph 293 of my judgment). The charges made were so serious, it is said, the cross-examination of the defendant's witnesses especially Mr Angus went no way to support them. My findings in favour of the defendant on all the principal issues, it is said, warrant orders in favour of that party. It was conceded however that the entitlement to the plaintiff would be limited to any costs occasioned by the amendment restricted to any pleading requirements.

9 It was also argued that this was not a case, nor is there any case, where a defendant should be "punished" or a plaintiff "rewarded" by the nature of any orders for costs. With this proposition I, of course, agree.

10 With a candour that can only command respect, Mr Reynolds S.C. (T1855.5 and .30) informed the Court of the frankly perilous situation of Mr Marsden vis-a-vis his legal advisers on the matter of outstanding costs. At T1856.15 I myself acknowledged the reality as did Mr Wheelhouse at T1856.25. Mr Reynolds indicated that what he said could be supported by affidavit and I accept that.

11 The discretion as to the making of orders for costs must be exercised judicially uninfluenced by candid and impassioned pleas or matters of sympathy.

12 From the point of view of the defendant I note the following: first, the defendant succeeded in its application to amend. It did not however succeed to the extent sought. The defendant failed to particularise any case in relation to D25 and thus that amendment was refused. The defendant did not succeed in maintaining the overall integrity of its subpoena (although I exercised my discretion not to set it aside). Importantly the defendant did not succeed in sustaining the particularisation of its case as sought to be amended by reason of my rulings striking out a body of particulars as irrelevant or scurrilous. The defendant did succeed in respect to the "psychiatric" component and had the benefit of a finding by me of acceptance of Mr Angus' testimony.

13 From the plaintiff's point of view I make it clear that whilst his position was both opened and closed "high" in terms of the nature of the allegations he made against the defendant, the conduct of the cross-examination of Mr Angus was appropriate, in no way improper and in the circumstances was reasonable. The plaintiff had consented to a great body of amendments the defendant wished to make. The plaintiff can be characterised as having taken a reasonable approach to that component. The plaintiff's "indignation" as to the D17 - D25 proposed amendments as I indicated in my judgment (paragraph 520), was understandable. On any view the amendments ultimately allowed, D17 - D24, do effect a substantial change to the defendant's case and thus the case the plaintiff has to meet. Further, there was an understanding reached that irrespective of the outcome of the nub of the defendant's application in relation to D17 to D25 the plaintiff would be entitled to an adjournment.

14 As was submitted for the plaintiff in the normal course, the judge deals with an amendment application and almost in a "summary" way makes the usual orders consequent upon any grant of leave. The duration of this particular application legitimately prosecuted by the defendant and legitimately, as I have found, resisted by the plaintiff, should make no difference.

15 The defendant argued that its case was not a matter of indulgence". I found that the defendant had, in effect, received a "windfall". Mr Reynolds made the telling submission, in my view, that the defendant had received a "windfall" but it was a "windfall" of which advantage could only be taken upon the grant of leave.

16 I also accept the submission for the plaintiff that if an order is made that encompasses costs "thrown away" by reason of the adjournment, whether, in fact, there are any such costs will be a matter for the assessor. A similar proposition applies to costs of the amendment.

17 The mere duration of the application, of course, by itself, is not sufficient to deprive the plaintiff of an order for costs if he is otherwise entitled. Nor is the intensity with which the application was opposed. I have found the opposition to the "nub" of the amendment application to have been reasonable.

18 The factors that I have referred to above persuade me that no case has been made to preclude the plaintiff from obtaining the usual order for costs upon the defendant's grant of leave to amend. That usual order will be inclusive of costs of the amendment application (that application to be taken as to include the application in relation to the subpoena by reason of their being so intertwined), the costs occasioned by the amendment and the costs occasioned by the adjournment which I ordered on 25 June 1999.

19 The dimensions of this litigation can only be described as enormous. The burden of its conduct and management on both sides are great. The defendant has applied for and has been granted leave substantially to expand its case the duration of which has been estimated to take up to one year. I consider it fair and appropriate in all the circumstances that the plaintiff have the benefit of orders under SCR Pt52A rr 8 and 9.

20 I am not persuaded however in the light of the analysis I have sought to make of all the matters affecting the exercise of my discretion, that a case has been made for an order for costs on an indemnity basis as opposed to a party and party basis. In all the circumstances to make an order in the form sought by the plaintiff could be perceived as "punishing" the defendant.

21 Accordingly, the formal orders are:

1. I order the defendant to pay the plaintiff's costs of the application leading to the orders made by me on 23 June 1997.

2. I order the defendant to pay the plaintiff's costs occasioned both by the amendment and the adjournment.

3. I order pursuant to SCR Pt 52A rules 8 and 9 that such costs upon assessment forthwith be payable.

4. I publish my reasons.

5. Liberty to apply on 24 hour's notice if necessary to my associate by phone at Grafton or Wagga Wagga.

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LAST UPDATED: 01/07/1999