This case is a classical example of that sentiment."
9 As recited in Morton, supra, that passage has been repeatedly approved and, although the governing provisions are now s 98 of the Civil Procedure Act and UCPR 42.1, as previously stated, the principles remain unaltered: see Morton, supra, at [12]. Ordinarily, the courts do not differentiate between particular issues in any proceeding but deal with the proceedings as a whole. This is due, in part, to the view that a successful party should not be deprived of the costs of its proceedings merely because issues were relied upon which proved unsuccessful. However, that general rule does not, by definition, apply at all times. In Cretazzo v Lombardi (1975) 13 SASR 4 at 12, Jacobs J cautioned in the following terms:
"But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues."
10 This passage was cited by approval by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] FCA 382, in cautioning against an overzealous application of the principle that a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but may also be ordered to pay the other party's costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law: ibid, at [9]-[10].
11 In the present proceedings, no separate cause of action was alleged. Nevertheless, the plaintiff alleged a number of imputations which were proved to be substantially true. Fairfax argues, in those circumstances, that the principles to which Toohey J referred in Hughes, supra, ought be applied and that Mr Ahmadi ought to pay Fairfax's costs, or at least 75% of them. There is a difficultly with that approach.
12 The cause of action, for which Mr Ahmadi sued, was defamation. He alleged that Fairfax had defamed him. It had defamed him. And Mr Ahmadi received damages for that defamation, albeit at a level lower than would have been the case if none of the imputations were proved to be true.
13 Because of the interrelationship of the allegations of fact, if Mr Ahmadi had sued Fairfax for defamation arising only from the imputations that were not proved to be true, the evidence in the proceedings would have been little or no different from that which was the case in the proceedings before the Court. Of course, if Fairfax had been sued for defamation arising only from that imputation, then it may have looked more carefully at the basis for that allegation. However, the conduct of the proceedings would indicate that, at the very least, Fairfax would have conducted the proceedings so as to argue, as it did, that the true imputations rendered the untrue imputations such that damages would not be awarded and that defamation did not arise.
14 Having stated those principles, facts and conclusions, it seems that a proportional approach to costs based arithmetically upon the number of imputations proved against those that were not proved is not an appropriate manner in which to apportion costs. Further, it would seem, in the circumstance of these proceedings, that Fairfax should not have any part of its costs paid by Mr Ahmadi.
15 It seems that the plaintiff should have some of his costs paid, but not all of them. As stated, the evidence, even if the proceedings had been confined to the untrue imputations, would have been in or to the same effect, both in terms of the evidence that was adduced and the length of the proceedings. It seems, taking a general and overall approach to the costs, that the plaintiff should have one-third of his costs paid and the Court will so order.
Interest
16 Pursuant to s 100 of the Civil Procedure Act, interest may be awarded up to judgment on the amount of damages. In this case, there are nice questions as to whether this issue is sufficiently important to warrant the attention of the Court. Generally the appropriate rate for a non-economic loss is 4%: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 at 666. The principles on the awarding of interest in defamation cases take account of the assumption that damages represent, at least in part, a loss spread over the time from the date of publication to trial: see, inter alia, John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 143; Vilo v John Fairfax and Sons Ltd and Anor [2000] NSWSC 1206 at [25]. Such an approach takes account of the theoretical fact that the plaintiff was entitled to damages immediately upon publication and the extent, if any, that the award was increased by reason of continuing injury. The practical approach is usually taken to award half the interest rate over the entire period: see John Fairfax & Sons Ltd v Kelly, supra, per McHugh JA at 143 and see, contra, Australian Consolidated Press v Driscoll (1988) Aust Torts Reports 80-175. Further discussion of the issue occurred in the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, particularly at [1553]-[1556].
17 While the amount is minimal, to say the least, it is clear that the principles do not allow the application of a mathematical formula without assessing the appropriateness of an interest rate and determining, on the basis of that assessment, that which is fair and proper.
18 In the view that I take of the defamation that has occurred, half of it occurred immediately and the other half was spread over the period between publication and judgment. In order to arrive at a result which reflects that proposition and is just and fair, an apportionment of 50% of the awarded damages shall be subject to the full 4% interest rate over the entire period and the other half would be subject to an interest rate that effects an equal spread of damage over the period between publication and judgment, namely, 2%. The effect of such an apportionment, arithmetically, is equivalent to the application of an overall interest rate of 3% on the entire judgment for the entire period. That is the award that will be made.
19 It is unnecessary to deal with interest after judgment as that is governed by the provisions of s 101 of the Civil Procedure Act and no contrary order is warranted, or sought.
Conclusion
20 For the foregoing reasons, the Court makes the following further orders: