Slee and Anor v Carson; John Fairfax and Sons Limited and Anor v Carson Matter Nos 40379/89 [1998] NSWSC 1031 (13 July 1998)

Last Updated: 28 August 1998

JOHN SLEE & ANOR v NICHOLAS RODERICK CARSON

CA 40379/89

JOHN FAIRFAX AND SONS LIMITED & ANOR v NICHOLAS RODERICK CARSON

CA 40380/89

13 July 1998

Mason P

The Supreme Court of New South Wales Court of Appeal

JUDGMENT

MASON P: The claimant is a solicitor who brought two actions for defamation, one against John Fairfax and Sons Limited alone, the other against John Fairfax and Sons Limited and Mr Slee. In June 1989 a trial lasted five days before Loveday J and a jury of four. Verdicts totalling $600,000 were returned by the jury. Subsequently judgment was entered in each action in sums that included interest. The claimant was awarded the costs of the proceedings. The defendants appealed.

In a hearing spanning over two days in March 1991 before a bench comprising Kirby P, Mahoney JA and Priestly JA five issues were ultimately pressed. They were:

1. that in each action the jury's verdict was excessive;

2. that in each action Loveday J was in error in permitting Mr Carson to rely in his claim for aggravated damages on the conduct of counsel for the defendants in cross examining Mr Carson and in failing to give the jury adequate instructions concerning such conduct;

3. that in each action his Honour had failed to direct the jury concerning the weight to be given to an apology published by Fairfax before the trial;

4. that in each action his Honour had failed to direct the jury concerning two remarks of counsel for Mr Carson in his closing address which was said to have been improper; and

5. that from in the second action Hunt J had erred in an interlocutory judgment in deciding that certain imputations defined by Mr Carson were capable as a matter of law of being conveyed and that they should be left to the jury.

The appeal in each matter was upheld on 18 July 1991: see (1991) 24 NSWLR 259. The orders of the court were as proposed by Kirby J at 280, that is:

1. Appeal allowed.

2. Set aside the judgment of Loveday J which followed the verdicts of the jury.

3. In lieu thereof order that the proceedings be returned to the Common Law Division for a retrial of the plaintiff's actions limited to the assessment of his damages.

4. The defendants to pay the costs of the trial before Loveday J.

5. The respondent to pay the appellants' costs of the appeal.

The orders to that effect in each appeal were entered, one being entered on 28 October 1991, the other on 13 April 1992.

An appeal by the claimant to the High Court was unsuccessful: see [1993] HCA 31; (1993) 178 CLR 44.

In November 1993 the claimant sought and was granted indemnity certificates pursuant to section 6B(2) of the Suitors' Fund Act.

In late 1997 the parties got down to assessing the costs. As with the whole of this litigation it appears that no quarter was given. In about March 1998 a dispute surfaced in the respect of submissions to the Costs Assessor. The claimant's solicitors contended that the costs recoverable were limited to the costs of the appeals referable to the issue of damages. Initially they sought to persuade the Costs Assessor to read down the general costs order pronounced and entered by the Court of Appeal. It is hardly surprising that the Assessor resisted this application. Ultimately the assessment process got to the stage where the Assessor was about to issue certificates as to his determination, being certificates issued on the basis of the general costs of the appeal.

Finally on 30 June 1998 the claimant filed a Notice of Motion seeking in each appeal the stay of proceedings until further order and the amendment of order five so that it read:

"In respect of each action the respondent to pay the appellants' costs of the appeal in respect of the ground of appeal arguing that the damages awarded by the jury were perverse and/or excessive and/or against the evidence or the weight of the evidence. The parties to pay their own costs in respect of the other ground of appeal."

Counsel for the claimant saw me in chambers on 30 June. Even at that belated stage there was no material indicative of the slip in the Court's order. Because of that I declined to stay the orders of the Court. However, to preserve the status quo, I directed the appellants not to register the costs certificates (which were shortly to issue) without leave of the Court. There were procedural directions given. The Notice of Motion was adjourned by consent and came on for hearing today. In the Notice of Motion the claimant relies upon part 20 rule 10, the slip rule.

In argument counsel for the claimant indicated alternative reliance upon the inherent jurisdiction of the Court. The extent of that jurisdiction in relation to perfected orders of the Court of Appeal is problematical. See Haig v the Minister Administering the National Parks and Wildlife Act, 1974 (1994) 85 LGERA 143; Registrar, Court of Appeal v Craven (No 2) (1995) 80 A Crim R 272.

Given the length of time that has elapsed and the fact that it is common ground that no argument was addressed to the Court of Appeal in 1991 on the issue of costs, meaning therefore that any slip was not the product of a denial of natural justice, I would decline to exercise any available inherent power.

Returning to the slip rule, it is common ground that:

"The application of a slip rule is not confined to giving effect to the intention of the judge at the time when the Court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission."

See Elyard Corporation Pty Limited v D D B Needham Sydney Pty Limited (1995) 61 FCR 385 at 391 per Lockhart J. See also Storey & Keers Pty Limited v Johnston (1987) 9 NSWLR 446 at 452-3.

To my mind the critical issue is whether the claimant has shown that there was an accidental slip or omission in the general costs order pronounced by the Court of Appeal in 1991. The claimant's argument is that this is demonstrated by the mere fact that the appellants succeeded on one of the five grounds of appeal pressed and that such ground resulted in a new trial as to damages as distinct from a new trial on liability as well. In my view this is not enough to show an accidental slip or omission.

In Storey & Keers, McHugh JA said (at 453):

"The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist....In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the Court's attention would the correction at once have been made."

Each notice of appeal claimed orders for costs of the appeal. The Court of Appeal addressed the issue of costs and awarded the costs of the appeal to the successful appellants. Now it is true that a court has power to make a special costs order where a party succeeds as to part only of a claim or succeeds on some grounds and fails on others. But it is in no wise an invariable practice. Indeed, it has been said that it is only rarely that a court would apportion costs, because the ends of justice would not be served if a party was dissuaded by the risk of costs from canvassing all relevant issues: see Hughes v West Australian Cricket Association Inc (1986) ATPR 40-748, Spargo v Haden Engineering Pty Limited [1993] SASC 3793; (1993) 60 SASR 39 at 57-8.

There are indications why the costs order that was made was an appropriate one. The issue on which the appellant succeeded was hardly a discreet one. To address it properly required a thorough canvassing of the substantive issues at trial and the course of the trial. One of the grounds of complaint other than that based on excessive damages obviously touched upon the decision to order the retrial. As Kirby J records at (278-9) that ground, namely counsel's closing address, succeeded. Although in itself it was held not to have warranted a retrial, his Honour noted that the ground of complaint confirmed and partly explained the error made by the jury in the quantification of damages.

The parties to the appeal were each represented by very experienced senior counsel. They were given the opportunity to make submissions orally and, after judgment was reserved, in writing as to the precise orders that should be made. No submissions were addressed as to any special order for costs. The hearing appears it have started late on one day and to have concluded sometime before 4.15 on the next. I mention that because I am unpersuaded that a second day's hearing would not have occurred even if the appeal had been confined at the outset to the issue of excessive damages.

Before me, Mr Wheelhouse has drawn attention to the fact that the Court of Appeal addressed costs in two of its orders. While the claimant was ordered to pay the appellant's costs of the appeal, the appellants, that is the defendants before Loveday J, were ordered to pay the costs of the trial before his Honour, even though that trial had miscarried due at least in part to the conduct of the claimant's counsel. This is a further reason why I am unpersuaded that any slip occurred.

The claimant sought to gain support from the fact that he had obtained from the Registrar a certificate under s6B(2) of the Suitors' Fund Act, which permits such certificate to be given if an appeal to the Court of Appeal succeeds on the ground of excessive damages. I do not see how this is part of the relevant context, which is the hearing two years earlier in the Court of Appeal. In any event, the certificate accurately reflected the Court of Appeal's reasons in ordering a limited retrial without in any way casting doubt upon its costs orders or the reasons for those costs orders.

For these reasons the application fails. I do not need to address the question of delay. My inclination is that the delay between March and June 1998 was itself a sufficient basis to refuse relief given that the assessment exercise proceeded during that period. The attempt to persuade the Costs Assessor to read down the costs order of the Court of Appeal was, I consider. a fruitless waste of time. However, I need not make a final decision on that basis.

I make the following orders:

1. Application dismissed with costs.

2. I dissolve the order made on 30 June 1998 restraining the appellants from registering their costs certificates without leave.

UNDERWOOD: Just one factual matter which I should draw to your attention. In the transcript on 4 March on page 6 there is a reference to luncheon adjournment and even though I didn't refer to it in--

MASON P: Is that the second day?

UNDERWOOD: No, this is the first day. It appears that the matter did start at the normal time and that there was substantial reading of transcript and submissions so just for that part of your judgment--

MASON P: Six pages is indicative of a late start. I see it was a Monday. There may well have been a motion but I see that--

UNDERWOOD: A late start in the day rather than a late start per se. I just wanted to draw that to your attention.

MASON P: It was a late start in the day and clearly there was more than one full day spent. But what I was conveying was that I was not persuaded that the case would not have gone into the second day had it been confined.