CHAPMAN & ORS v CONSERVATION COUNCIL OF SA & ORS No. SCCIV-98-81 [2002] SASC 70

Although there were multiple parties on each side there was common representation of all plaintiffs and defendants respectively. Therefore it seems to me that I should give effect to what the parties have done by treating each side as having incurred one set of costs in circumstances where each side has had some success.

The plaintiffs were wholly unsuccessful at trial with respect to eight claims and Mr Tom and Mrs Wendy Chapman succeeded with respect to three claims. Mr Andrew Chapman was wholly unsuccessful. In addition to these eleven claims which came to trial before me there were a further six claims which were struck out by interlocutory process or abandoned prior to trial.

On 23 June 1999 and 5 July 2000 Bleby J (who managed the action prior to trial) made orders dealing with the costs of specific applications and my decision today will not affect the operation of these orders. On 6 August 1998 a Master ordered that certain costs be "costs in the cause". This was the first of a number of orders made in that form. I will treat these costs as being within the ambit of my order. However, I regard the action as giving rise to only one "cause" which deals with a number of separate claims.

I will therefore deal globally with all outstanding questions of costs arising in the cause - both in respect of the pre-trial procedures and the costs of the trial itself.

To award separate costs upon itemised bills in respect of those aspects of the case where a particular party has been successful will leave room for argument upon taxation as to the allocation and apportionment of the individual items of costs as between the various claims. A formal taxation of costs would undoubtedly be an exhaustive and time consuming exercise. That process itself is likely to require the taxing officer to wield a broad brush.

The defendants have urged me to exercise the power contained in SCR 101.01(a) to make an award of costs expressed as a monetary lump sum. In my opinion it is in the interests of the parties that they should be informed immediately as to the cash impact of my judgment so that they can assess their respective positions in the knowledge of what exactly is at stake. Hopefully, in the course of making that assessment the parties will consider whether there is any scope for compromise. (I have mentioned this topic at the foot of these reasons).

Although I have chosen to award a lump sum which reflects the exercise of my discretion, the outcome is not arbitrary. I have brought to account all that counsel have put before me together with my own analysis of the course of the proceedings. I have endeavoured in these reasons to give a measure of transparency to the way in which I have reached my conclusions.

So far as the costs of trial are concerned I am in a position of advantage to assess the costs which were fairly attributable to the various issues during the 39 days of trial. It became unnecessary for the defendants to pursue to its conclusion their defence with respect to Publications No 1-4 (inclusive) and 8 - 10 (inclusive) as I gave an intimation as the case proceeded that I did not require the defendants to deal further with these publications after I had reached the point in the trial where I was able to conclude that the publications were not defamatory of the plaintiffs. However, I am aware that the defendants up to this point had to prepare and present a case upon all issues by way of defence and I have kept this fact in mind. I obtained particular assistance from the tables dealing with mitigation of damages as referred to in Pt 16 of my earlier reasons. These tables (prepared by defence counsel) were specifically directed to my actual findings - owing to the intimation which I provided. Nevertheless the defence had to lay the groundwork to be ready to apply s 11 of the Wrongs Act 1936 in anticipation that my decision might be different. The work associated with that task is significant. I spent some days in evaluating this material (after counsel had assembled it for me). The task of assembling and condensing the information was formidable. It may be that there was not much saving in costs by my intimation except that counsel were better able to mould their arguments to the issues as I had confined them. I have had regard to the fact that the defendants have had to anticipate the possibility that some other court may reach conclusions different from mine; the defendants have had to present a case to meet this contingency.

My impression of the trial is that it involved:

(1) a detailed analysis of the language of each of 11 publications (and comment thereon by each of the plaintiffs and personal defendants).

(2) a case by the defendants as to the "reasonableness" of their conduct (including fair comment).

The case as to "reasonableness" and the case as to "malice" is intermixed. As the plaintiffs succeeded upon each of these aspects it is unnecessary to deal separately with each of these aspects. There was an extensive factual history (described in pts 19 and 20 of my earlier judgment) and each side relied thereon. Although the history was extensive it does not now require separate consideration.

There was no plea of justification with respect to the imputations which I found to be defamatory (see par 13 of my earlier judgment). However, the plaintiffs put forward many other imputations which the defendants were prepared to justify (sometimes with a Polly Peck plea); I have already noted that the defendants were obliged to bring forward all their various defences in all cases even although in many instances it eventually became unnecessary for me to deal with these defences.

Although the plaintiffs were unsuccessful at trial with respect to 8 publications, an analysis of at least some of these documents was relevant to the case upon which Mr and Mrs Chapman succeeded. Publication No 5 was linked to Publication No 6 and the construction of the latter was affected by the internal reference to the former. Publication No 8 was relevant to an understanding of the workings of the author's mind even although I decided that the ultimate meaning of the document was obscure. Publication No 10 (a media release) is a slightly shortened version of Publication No 8 (a journal article) produced at about the same time. All eleven publications are useful in identifying the campaign which was pursued against the Chapmans and the government; this was relevant to the establishment of the dominant motive for publication.

Much work was involved in the preparation of the volumes of documents (in all 2800 pages) which came before me as one exhibit. Both sides contributed to the various sections of that exhibit.

I have made an assessment as to how the unsuccessful claims with respect to eight publications unreasonably increased the costs; in respect of that aspect the plaintiffs must not only bear their own costs but must bear the costs of the defendants. In reaching this conclusion I have had regard to the views expressed by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16:

"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."

In the present case some issues upon which the plaintiffs were unsuccessful were discrete - for example the meaning attaching to the various publications. In the result not only have I declined to award costs to the plaintiffs upon certain aspects but I have gone further and (for the purposes of my calculations and assessment) required the plaintiffs to bear the relevant costs of the defendants. This latter step has the effect of substantially reducing the costs payable to the successful party.

In my reasons for judgment of 21 January 2002 (par 16) I noted the difficult task facing a plaintiff who asserts malice on the part of a body such as the Conservation Council. Not only must the dominant motive of an individual be proved but this motive must then be attributed in law to the Conservation Council. In the present case Publication No 11 presented a particular evidentiary problem because the Conservation Council published the article in a way which (upon my finding) hid the true status of the publication. In the absence of the extensive evidence which was adduced for example as to the workings of the Kumarangk Coalition there would be much to be said for the public interest factors of which "no narrow view is taken". There is a body of evidence which in this respect impinges immediately upon Publication 11 but is also useful with respect to Publication No 7 and the motives of its authors. There is another body of evidence which supports the plaintiffs' case as to malice with respect to Publication No 6 although there is some overlap between the evidence relevant to all three publications. I have endeavoured to separate these bodies of evidence for the purposes of assessing the evidence (and accompanying costs) relevant to the three individual claims upon which two plaintiffs have been successful.

During the course of argument as to costs counsel for the plaintiff sought to refer to an offer made in a "Calderbank" letter dated 5 July 2001 (after the commencement of trial). The letter is prefaced by a reference to the position taken by the defendants in the course of mediation conducted pursuant to s 65 of the Supreme Court Act 1935. However that section includes the following:

"(6) Evidence of anything said or done in an attempt to settle a proceeding by mediation under this section is not subsequently admissible in the proceeding or in related proceedings."

In my opinion that subsection prohibits reference to "anything said" in the course of mediation. Accordingly I have refused to consider the letter.

The plaintiffs also point to a number of letters written by the plaintiffs' solicitors to the defendants' solicitors in which complaint is made that the plaintiffs were defamed. The plaintiffs contend that the defendants were given the opportunity to avoid litigation but did not respond appropriately. There is nothing in the correspondence standing alone or in the subsequent conduct of the parties which would lead me to make any special costs order. The correspondence in question comprises a bundle of "letters before action". If the plaintiffs had commenced proceedings without any warning that fact might have reacted against the plaintiffs upon the question of costs. However, I do not consider that the plaintiffs in this case are entitled to any special consideration because they may have offered the defendants the opportunity to avoid litigation.

The parties have supplied me with their actual costs. I have used these figures as a check against my own assessment based on the guide to counsel fees published by the court, the Supreme Court cost scale, the prescribed fees for court transcripts ($4.70 per page) and the daily hearing fee ($238); this latter fee (a total of $9282 in this case) is payable only by the plaintiffs but it has been "blended" into the figures which I have adopted. A set of trial transcript will cost $12398.

For the purposes of my assessment I have assessed the total costs of each side as being $125,000. I have treated the daily trial costs of each side as $2600 (representing $2000 for counsel/solicitor together with $600 to cover transcript, hearing fees and associated costs and for witness fees where applicable). The extension of the daily cost of $2600 for 39 days of trial produces $101,400. (I have rounded this figure down to $100,000). My judgment is that the pre-trial costs are about $25,000 on each side. I have reached the conclusion (by applying the "broad brush" to which I previously referred) that for each side the trial costs are $100,000 and pre-trial costs are $25,000 - in all $125,000 as abovementioned.

I have already noted that the plaintiffs put forward seventeen claims in their original statement of claim; of these six claims were struck out or abandoned before trial. Ultimately three claims succeed. The original statement of claim was extensively amended as the case proceeded. The defendants had to consider and prepare a defence with respect to each of those claims and, to some extent, a separate and independent assessment was required with respect to each of the plaintiffs' claims. It is my view that having regard to the extent of the plaintiffs' lack of success the plaintiffs should pay to the defendants $10,000 towards their pre-trial costs, that is to say 70 per cent of the pre-trial costs of both sides should be borne by the plaintiffs and the balance of costs (30 per cent) of both sides should be borne by the defendants. The difference between 70 per cent and 30 per cent is 40 per cent; therefore the plaintiffs notionally will pay to the defendants 40 per cent of $25,000 namely $10,000. I have brought this amount to account.

As regards the costs of trial ($100,000 for each side) I consider that the relative degrees of success of each side would be reflected in an order that the defendants be required to pay 80 per cent of the plaintiffs' costs ($80,000) and that the plaintiffs be required to pay 20 per cent of the defendants' costs ($20,000) leaving a net award of $60,000 to the plaintiffs as their costs of trial.

It will be noted that the same logic has been applied to the pre-trial costs and to the trial costs although the proportions are different. It was submitted during the course of argument that I might carry out such an exercise which required me only to produce one calculation for the whole course of the proceedings. I consider that a better result is achieved by doing the calculation in two stages. My judgment is that the pre-trial costs and the costs of trial ought not to be apportioned in the same way.

When the net pre-trial costs for which upon my judgment the plaintiffs are liable ($10,000) are brought to account against $60,000 which the plaintiffs ought to receive as abovementioned, there will be a lump sum award of $50,000 for which the Conservation Council is liable.

In my opinion this amount of $50,000 should then be divided into five equal parts of $10,000. Professor Shearman should be liable jointly and severally with the Conservation Council in respect of one of these parts. Ms Bolster and Mr Owen should be liable jointly and severally with Conservation Council in respect of a further two of these parts ($20,000) and the balance ($20,000) should be the sole responsibility of the Conservation Council. I refer to the summary set out at the foot of these reasons.

Although I supply this calculation as one way of reaching an outcome I have also looked at the matter in other ways and applied various tests. For example I have separately assessed the costs which would have been reasonably incurred if the claim against Professor Shearman (Publication No 6) had been brought alone. In fact the costs payable by the defendants for such an action would be considerably higher than $10,000. (However that demonstrates the efficiency of proceeding upon all claims together). I have made similar assessments with respect to Publications No 7 and 11. Apart from these calculations I also made a more general assessment based on my broad impressions of the trial and my investigations of the pre-trial proceedings; in my opinion an exercise of this nature is likely to be as valuable as a detailed calculation. All approaches led me to similar conclusions as to what is fair and reasonable in all the circumstances.

In the course of argument I intimated to counsel that there were certain costs associated with the plaintiffs' preparation of a number of books of material specifically relating to the "identification of the plaintiffs with the Marina in the public mind". In my calculations I have specifically disallowed any notional claim for the preparation of this material which was also relevant to other proceedings. These books are to be distinguished from the 2800 page volumes prepared by both sides working in co-operation. I have not allowed costs regarding the "identification evidence", but it is at least arguable that it was reasonable for Mr Tom and Mrs Wendy Chapman to advance this evidence with respect to Publication No 6 even although I identified Mrs Chapman by reference to her name in Publication No 5. This is a case where in accordance with the principle of Cretazzo v Lombardi it would have been reasonable to allow plaintiffs the costs of an alternative claim. I have not made such an allowance. On the other hand I have not penalised the plaintiffs heavily in costs by reason of the entire lack of success of Mr Andrew Chapman. This demonstrates the application of my broad brush. I have brought to account the extent to which the defendants have incurred costs by reason of the inclusion of Mr Andrew Chapman as a plaintiff. No order for costs will be made against Mr Andrew Chapman nor will he be entitled to costs.

Section 65(4) of the Supreme Court Act (dealing with conciliation by the trial judge) reads:

"The court may itself endeavour to achieve a negotiated settlement of a civil proceeding or resolution of any issues arising in a civil proceeding."

I have previously referred this action for mediation under s 65(1). Whilst I intend to fix realistic time limits to enable the parties to consider their position I invite attention to the possibility that the parties may now be able to achieve a settlement of their differences. To this end I will not enter judgment and set a time for further processes until counsel have had the opportunity to explore whether the court could be of assistance to the parties in accordance with s 65 of the Supreme Court Act. Subject to this enquiry I propose to enter a judgment based on a calculation as set out below. The calculation is broadly based and there will be no costs awarded with respect to the argument on 26 and 27 February 2002 or upon the entry of this order. There will be liberty to apply.

(a) The estimated reasonable costs of each side are:

(b) Net costs payable to plaintiffs Tom and Wendy Chapman

(c) Liability for costs (payable to Tom and Wendy Chapman) apportioned between defendants as follows:

(i) Professor Shearman & Conservation Council $10,000

(ii) Ms Bolster, Mr Owen & Conservation Council $20,000