Rockett v Anthony[1998] QDC 199

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REASONS FOR JUDGMENT

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REASONS FOR JUDGMENT - ROBIN QC D.C.J.

Delivered the 5th day August 1998

After a disjointed trial completed in Brisbane on 1 July 1998, I published reasons for my conclusions dated 24 July 1998, which was a Friday. The reasons could not be photocopied for distribution to the parties on that day because of a photocopier malfunction, but were distributed on the following Monday. On 30 July 1998, the parties' representatives appeared to make submissions as to the orders which ought to be made.

Mr Hampson, for the plaintiffs, sought interest on the damages assessed, three sums attributable to three separate publications regarding the first plaintiff aggregating $20,000 and $1,000 in respect of a single publication regarding the second plaintiff. I now have to declare whether those sums were assessed as at the dates of the publications (from which Mr Hampson contended they ought to bear interest) or were arrived at as appropriate sums to award in July 1998. I recall no submissions in respect of interest at the trial.

There is something odd about awarding interest from dates years before trial on damages whose quantum is affected by the parties' conduct at trial. It is certainly not automatic that damages for defamation attract interest, no interest being awarded by the Court of Appeal in Griffiths (1993) 2 Qd.R. 367, 374, for example - nothing was said about interest at all. On the other hand, in the Full Court of the Supreme Court of Victoria, in David Syme & Co Ltd v. Mather (1977) VR 516, in which a jury verdict of $40,000 was reduced to $17,500, the Full Court (reflecting the course taken by the trial judge) added $1,100 damages in the nature of interest. In Kelly v. John Fairfax & Sons Ltd. (1985) 1 NSWLR 462, Hunt J was of the view that although interest was appropriate in a defamation action on special damages included in the verdict, and on damages awarded as compensation for distress and injury to feelings so far as related to past losses, it was not appropriate in respect of damages awarded for injury to the plaintiff's reputation, being damages by way of vindication. His Honour declined to award interest in the absence of dissection by the jury of damages assessed by them. On appeal, Samuels JA agreed with this approach, but Kirby P and McHugh JA, as their Honours were then, did not. The headnote of John Fairfax & Sons Ltd v. Kelly (1987) 8 NSWLR 131 is:

At 144, perhaps taking comfort from Brooking J's awarding of $7,500 interest on a verdict of $30,000 pursuant to “an instinctive synthesis based on various rough calculations and broad assessments”, McHugh JA ordered $25,875 upon the jury verdict of $115,000 as “interest for three years at 15% on the basis that the loss accumulated over that period”. At the time of the decision, Cullen v. Trappell (1980) 146 CLR 1, referred to at first instance and on appeal, represented the law. That decision having been overruled by the High Court in MBP (SA) Pty Ltd v. Gogic (1991) 98 ALR 193, it must be doubtful whether such a generous rate of interest is nowadays appropriate.

Given Mr Devencorn's insistence that he was not interested in the money, it would be inappropriate to exercise a discretion to add to the “round” sum assessed further compensation by way of interest on the basis he had been held out of that round sum. So far as Mrs Rockett is concerned, if Gogic applies, no more is in issue than something like $1,000 in interest. My approach in assessing the three components aggregating $20,000 was to fix the sum I thought appropriate for Mrs Rockett to receive from the defendants here and now. As it happens, it coincides with Mr Hampson's suggestion in his closing address, when he made no suggestion it ought to be enlarged by an award of interest. Although the New South Wales and Victorian cases establish the appropriateness of adding interest to a jury's verdict, or, presumably, to a judge's assessment of damages, I am not persuaded I ought to exercise my discretion to do it in this case, particularly in light of the way in which the trial has been conducted.

The next question is whether any qualification ought to be made to a straightforward order that the defendants pay the plaintiffs' costs of the action to be taxed. Mr Hampson submitted for a more favourable order on the basis of an offer to settle under Part IX of the District Court Rules on 27 March 1998, between the second and third weeks of the trial. The offer required the defendants to pay $9,999 plus solicitor and own client costs and outlays to date to the first plaintiff, and $4,999 plus solicitor and own client costs and outlays to date to the second plaintiff and, in addition, an apology (in terms incorporated in the offer) was required. I noted at the hearing that the apology may have gone too far, measured against my findings, in saying that the “Roessler invoice” was “not intended (by Mrs Rockett) to mislead the committee or other unit owners” in that, although I found there was no intention to mislead the committee, there was an intention to conceal the full facts from persons who might inquire, which would include unit owners. I have to say, however, that the draftsperson of the suggested apology was solicitous to present Mrs Anthony and other committee members as acting in good faith. Timms v. Clift QLR 7/2/98 shows that the inclusion of a requirement of an apology does not preclude the plaintiffs' seeking an advantageous costs order in the circumstances. There would be extreme practical difficulties for the taxing officer, I would think, in assessing Mrs Rockett's costs on a solicitor and own client basis, and Mr Devencorn's on the conventional party and party basis. Dealing with their claims together, it is not clear that the plaintiffs have done better than their offer. Quite apart from any significance to be attached to lack of an apology, one does not know how costs on the higher basis would compare with costs on the conventional basis. Mr Morris Q.C. did not dispute the court's entitlement to regard the plaintiffs' communication of 27 March 1998 as a relevant offer under the common law approach which has taken its name from Calderbank v. Calderbank (1976) Fam 93; (1975) All E.R. 333.

Except in respect of Mr Devencorn's claim, Mr Hampson has an arguable case for a favourable costs order, particularly in respect of costs incurred after the making of the offer. It is not appropriate to deal with the argument, however, in isolation from Mr Morris' arguments that the plaintiffs ought to obtain a less favourable order for costs than the ordinary one, firstly, on the basis that the damages recovered could and should have been sought in the Magistrates Court, and secondly, on the basis that on some issues the plaintiffs were unsuccessful. One might add that some time was spent on unsuccessful applications by Mr Hampson to amend, in particular, at the beginning of the trial, to seek the court's adjudication on what I considered commercial disputes between the parties arising long after the defamatory publications were made, and on 11 May 1998 to add a cause of action in respect of the second publication in the interests of Mr Devencorn, who had not previously made allegations in respect of it. I have a further general concern flowing from the inordinate length of the trial, for longer than expectations at its commencement could have extended.

In respect of the appropriateness of limiting the plaintiffs' costs to those recoverable under the Magistrates Court scale, the discretion to do that is clear, and often exercised. My published reasons invited the parties to locate authorities which might show a practice in defamation proceedings in particular. The only reference forthcoming has been to Elizabeth Joan Carr v. Queensland Newspapers Pty Ltd (1582/92, Sheahan J, 27 May 1977). In accordance with the jury's determination, Sheahan J ordered judgment for the plaintiff for $2,000 damages, with costs to be taxed, saying nothing as to interest. By the time of trial, it was thought damages could have been assessed up to $10,000 in the District Court; when the action was instituted, they could have been assessed up to $6,000. Mr Hampson Q.C. submitted to Sheahan J, “It would be a very bold person” who would have said the plaintiff should have commenced in the District Court, that no reason had been shown why the costs should be limited. His Honour said:

Mr Morris submitted that in a case like Carr in which the defamatory publication was in a newspaper with statewide circulation, the appropriateness of commencing in a court without the indicated limit on its monetary jurisdiction presented a point of distinction from the present case. The Magistrates Court jurisdiction, for present purposes, was up to $40,000. The plaintiffs did not require a jury, and, thus, could have proceeded in the Magistrates Court, if the matter is judged from the judgment amounts, I think the plaintiffs' expectations were not confined within a $40,000 limit. Their plaint did not nominate the sum sued for. My impression is that there is a tendency for defamation claims to be pursued in courts with the highest credible monetary jurisdiction, rather than those with the lowest. Perhaps that is the reason why defamation actions are relative novelties in the District Court and, I would think, even more “relatively novel” in Magistrates Courts. I think the plaintiffs were justified in commencing in the District Court, and note that the defence never have suggested, until the costs issue arose, that the action would be better dealt with by a Magistrate.

Mr Morris submitted that Mr Hampson's suggestion of $20,000 as appropriate compensation to Mrs Rockett at the end of the trial, and, a fortiori, the plaintiffs' suggested figures in their offer to settle of 27 March 1998, strengthen his argument that the Magistrates Court was the proper venue. I think it would be unreasonable to regard either set of suggested figures as unaffected by developments during the trial preceding them. For example, before the conclusion of the trial I had made comments adverse to Mrs Rockett along the lines of what appears now at p.38 of my reasons. I would add as a consideration supporting appropriateness of the selection of the District Court as venue the possibility when the action was commenced (3 November 1995) that events might afterwards occur which would inflate the damages that might be recovered. In my opinion it is appropriate that the District Court scale of costs indicated by the judgment amounts should be applied.

Issues on which the defendants succeeded - it would be more accurate perhaps to refer to them as issues on which the plaintiffs failed - essentially centred upon the plaintiffs' extravagant allegation in their particulars that every committee member of the second defendant, excepting Mrs Rockett, was actuated by an improper motive towards her and believed the defamatory statements to be untrue. I cannot appreciate the necessity for the plaintiffs to prove the state of any mind other than Mrs Anthony's. It was not surprising that the defendants rose to the challenge and called all committee members. Mr Morris is no doubt right in suggesting comment might have been made had they not done so, with the imputation that the missing evidence would not have helped. The importance of witnesses in this group varied enormously. Mr O'Donnell probably had to be called anyway, whereas, given her absence from the meeting of 31 March 1995, Ms Cominos arguably should not have been troubled at all.

The plaintiffs' conduct of the case caused a certain amount of time to be spent on matters I thought were not useful in the end, such as committee members' views of Dr Eccles.

Contributing to the complicated picture relevant to determining a just costs order was the loss of some time when I was asked to stand the matter down so that settlement could be explored.

I was led to believe that problems arose concerning how the second defendant might be able to settle, given requirements of the Building Units and Group Titles Act. On 30 July 1998, it emerged that a particular problem might have been confidentiality.The exhibit tendered on that day persuades me that, on the plaintiffs' side, anyway, genuine and reasonable attempts to settle were being made. Under the Calderbank principle, if not under r.118, the plaintiffs are entitled to some credit for that, notwithstanding the minor respect in which I have been critical of the terms of the apology required. I think an appropriate way of acknowledging the defendants' limited “success” in all circumstances is to exempt them from the liability to pay costs of the last two days of the hearing. Accordingly, the orders are: