DEMPSTER v COATES

Court of Appeal (NSW)|1990-02-23|Before: Gleeson CJ, Clarke JA, McInerney J

DEMPSTER v COATES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, CLARKE and HANDLEY JJA 22 and 23 February 1990, 11 April 1990

The respondent sued the appellant claiming damages for three allegedly defamatory publications by the appellant. The first claim arose out of statements by the appellant in an interview with a reporter prior to a radio programme. The second arose out of the discussion between the appellant and the reporter in the radio interview and the third concerned statements made, and correspondence sent, by the appellant to a journalist. On the first day of the trial the appellant's wife appeared and said that her husband had been detained in Hong Kong. The Trial Judge adjourned the hearing for two days. On the next occasion the appellant's wife again appeared and said that because of the appellant's illness he had been unable to return to Sydney in time for the hearing. The respondent however adduced evidence which persuaded the Trial Judge that the appellant had deliberately set out to frustrate the respondent in his attempts to have the case heard. Any further adjournment was refused. The case proceeded and on the first day the appellant was unrepresented. Representation was obtained on the second and ensuing days of the trial. At the end of the summing-up the jury retired to consider a number of questions which had been submitted by the Trial Judge. Consequent upon the answers which the jury gave to those questions the Trial Judge entered a verdict for the respondent for $58,000.00 in respect of the first claim, a verdict for the appellant on the second claim and a verdict for the respondent for $62,000.00 on the third claim. In their answers the jury found that the statements made by the appellant in the first interview conveyed the imputations upon which the respondent relied. They also found that words were spoken in the second interview to the same effect as those spoken in the first interview but that those words did not convey the imputations upon which the respondent relied in respect of both interviews. Held:

(1) The jury had returned inconsistent answers and as the inconsistency had not been removed there should be a new trial of the action.

(2) That insofar as the damages were awarded in respect of publications to single individuals they were excessive.

(3) The Trial Judge had not erred in declining to grant an adjournment on the second occasion.

(4) There be a new trial of the action on all issues.

Gleeson CJ In this matter I have had the advantage of reading in draft form the judgment of Clarke JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Clarke JA The respondent who was, inter alia, the P President of the Australian Rowing Council Inc sued 2KY Broadcasters Pty Ltd, a journalist Ian Hay and the appellant, who was a director of Sargent and Burton Pty Ltd, racing boat builders and oar and scull makers, claiming damages for defamatory publications by those three parties. The proceedings against 2KY Broadcasters Pty Ltd and Mr Hay were compromised and the only contestants at the trial which proceeded before McInerney J were the appellant and respondent.

The respondent claimed that the appellant had defamed him on three occasions. The first defamatory publication relied upon occurred during an interview between the appellant and Mr Jan Hay on 23 April 1984 immediately

before the appellant's participation in Mr Hay's radio programme "Sports Cavalcade". It was then alleged that the appellant further defamed the respondent during the broadcast interview with Mr Hay on "Sports Cavalcade". The third defamatory publication relied upon by the respondent occurred on another occasion. It was alleged that in March 1984 the appellant had a conversation with a Mr Rupert Guinness, a sporting journalist who wrote for "The Australian" and that following their discussion the appellant had sent to Mr Guinness some letters concerning an incident involving Australian rowers who were then on a tour of New Zealand. It was asserted that in combination the oral statement and the letters which the appellant sent to Mr Guinness made gravely damaging imputations against the respondent.

In the final amended statement of claim upon which the respondent relied he contended, as particulars of aggravated damages under Pt67 r12(v), that the appellant had made two other damaging and defamatory statements about him to sporting officials. Notwithstanding that the statements allegedly made on these occasions were arguably much graver than the defamatory publications on which the respondent relied he did not seek to recover damages for them. He raised them only as matters going to the aggravation of the damage he suffered from the three publications on which he sued.

The trial was not an entirely satisfactory one but the fault for that lay, as will be seen, with the appellant. I will, however, put that aspect of the appeal to one side until I come to deal with the specific grounds. After the evidence had been concluded, counsel had given their final addresses and the judge had summed up the jury retired to deliberate upon the appropriate answers to a number of questions which had been submitted to them, without objection from the appellant's counsel, at the behest of counsel for the respondent. The questions identify the imputations and, with varying degrees of particularity, the defamatory statements said to have been made by the appellant and because of the importance of the questions and answers in this appeal it is necessary to set them both out:

"1. Did the defendant publish of and concerning the plaintiff to Mr Ian Hay the words attributed to him as follows:

Dempster: 'There are some things we can't talk about but one of the things that is causing the problems is something that happened in New Zealand, '

Dempster: 'The rowers had to chip in to pay an amount of money for damage to a room at a motel, '

Hay: Well, it must have been rather boisterous, rugby league players do it all the time, '

Dempster: 'Oh, it wasn't the rowers, it was the officials, '

Hay: 'Who are the officials and how come that occurred and no-one said anything about it?'

Dempster: There was a bunch of officials there, ' Hay: "Who was in charge?'

Dempster: 'Goodridge was dropped and Rusty Robinson was dropped and that was a crime.'

Hay: 'Well why isn't something being done about it?'

Dempster: Because there are big moves in the Olympic area and they don't want any ripples to occur down there because there is a jockeying for positions and somebody is chasing somebody else's job.'

Dempster: 'Well Coates is looking for the job that Phil Coles will vacate. This will cause ripples in the Association.'

Dempster: 'The officials don't really have the interests of the rowers at heart.'

If yes to question 1, did the matter published by the defendant convey the imputations (or any imputations not substantially different from):

(a) The plaintiff acted against the best interests of the Australian Olympic Federation and the Australian Rowing Council in that he put his own personal ambition ahead of his duty as an Olympic and rowing official.

(b) The plaintiff was not fit to be an Olympic and rowing official because he was more concerned with personal gain from his position than in service to sport.

If the answer to (a) and/or (b) of question 2 is yes, then: (a) Was imputation (a) defamatory of the plaintiff?

YES (b) Was imputation (b) defamatory of the plaintiff?

Having regard to those imputations found to have been conveyed and to be defamatory of the plaintiff, what amount of damages by way of compensation should be awarded to the plaintiff. $58,000.00

If the answer to question | is yes, did the defendant publish the words in question to Mr Ian Hay:

(a) intending that Mr Hay would repeat those matters during the "Sports Cavalcade" programme on radio station 2KY on 23 April, 1984; or

If the answer to question 5(a) is yes, proceed to question 6.

(b) in circumstances where re-publication on the Sports Cavalcade programme on radio station 2KY on 23 April, 1984 was the natural and probable result of the original publication by the defendant.

If the answer to (a) and/or (b) of question 5 is yes, were the words or words to the same effect re-published on radio station 2KY on 23 April 1984. YES

If yes to questions 5 and 6, as to the words so re-published and the words spoken by the defendant personally in the broadcast on radio station 2KY on 23 April, 1984, did these words convey the imputations (or any imputations not substantially different from):

(b) The plaintiff was not fit to be an Olympic and rowing official because he was more concerned with personal gain from his position than in service to sport.

If the answer to (a) and/or (b) of question 7 is yes:

(a) Was imputation (a) defamatory of the plaintiff?

(b) Was imputation (b) defamatory of the plaintiff?

Having regard to those imputations found to have been conveyed and to be defamatory of the plaintiff, what amount of damages by way of compensation should be awarded to the plaintiff.

"Rupert, I have a great story for you. It is a story which has to be written.

It will take a lot of guts. It has to do with the Australian trip to New Zealand in which there was some damage supposedly done by the crew members that was actually done by Coates and the officials.'

and the matter complained of (in Exhibit A) published by the defendant of and concerning the plaintiff. YES

If the answer to question 10 is yes, did the matter complained of convey the imputations (or any imputations not substantially different from):

(a) The plaintiff was guilty of vandalism and destruction of property at the Russley Park Motor Camp while staying there as an official of the Australian Rowing Team

(b) The plaintiff falsely accused members of the Australian Rowing Team of causing damage to the Russley Park Motor Camp well knowing that in fact he and other officials had been responsible for the damage themselves.

(c) The plaintiff misused his position as President of the Australian Amateur Rowing Council dishonestly to obtain $359.62 from members of the Australian Rowing Team to pay for damage which he and other officials had in fact caused at the Russley Park Motor Camp.

(d) The plaintiff was unfit to be President of the Australian Amateur Rowing Council by reason of his dishonest and unjust treatment of Australian Rowing Team members in falsely accusing them of causing damage at the Russley Park Motor Camp in New Zealand.

If the answer to (a) and/or (b) and/or (c) and/or (d) is yes:

(a) Was imputation (a) defamatory of the plaintiff? YES

(b) Was imputation (b) defamatory of the plaintiff? YES

(d) Was imputation (d) defamatory of the plaintiff? YES

Having regard to those imputations found to have been conveyed and to be defamatory of the plaintiff, what amount of damages by way of compensation should be awarded to the plaintiff? $62,000"

It will be immediately apparent from the answers that the jury upheld the respondent's case in relation to the statements made to Mr Hay and Mr Guinness but rejected the claim that the appellant had made the defamatory imputations upon which the respondent relied in the broadcast interview. The jury were therefore called upon to assess damages in respect of publications made to single persons. Even allowing for the fact that Messrs Hay and Guinness might have repeated the defamatory thrust of the appellant's allegations to other persons the awards of $58,000 and $62,000 respectively were very high and appear to reflect a lack of appreciation of the very limited scope of the publication of the defamatory imputations which it had accepted had been made. The apparent excessiveness of these awards provided, not surprisingly, one ground of appeal. But there was an even more fundamental problem thrown up by the answers to the questions and, in particular, questions 2, 3, 5, 6 and 7 which led to a ground of appeal asserting, in essence, that there was, in the light of the answer to question 6, an inconsistency between the answers to questions 2 and 7 which necessitated the setting aside of the judgment which McInerney J directed be entered consequent upon the answers of the jury.

I am of opinion that the appellant should succeed in this appeal on the second of the two grounds I have identified and in these circumstances it is convenient initially to deal with that ground.

The applicable principles of law are well settled and are not, as I understood the arguments, in dispute.

The general principle was expressed by Jacobs JA (as he then was) in Bakalidis v Hill 87 WN (Pt1) 64 in these terms (at 65):

".. the verdict of a jury must not be ambiguous, and that it is the duty of the court to resolve the ambiguity, and, if it does not or cannot do so before the discharge of the jury, then to stand the matter over for further trial." (See also R v Ellis, (1852) 1 Legge 749 and R v Crisp, (1912) 7 Cr Appeal R 173).

This was said in the context of a trial in the District Court but the principle applies also to trials by jury in the Supreme Court (Hassan v Moore Engineering (Cooma) Pty Ltd 70 SR 448). In both Bakalidis and Hassan the juries had returned general verdicts but no reason appears why the same principle does not apply in circumstances where a jury is invited to answer specific questions submitted by the trial judge pursuant to s90 of the Supreme Court Act.

The furnishing of inconsistent, or even unclear, answers may make it impossible for the court to direct the entry of judgment for one or other party or may lead to the entry of a judgment which itself is inconsistent with an answer furnished by the jury. Accordingly, if an answer to a question appears to be in conflict, or be inconsistent, with the answer to another question the duty of the judge to seek clarification clearly arises. Contrary to the views expressed by Greer LJ in Dew v United British Steamship Co (1929) 98 LJKB 88 the jury is not functus officio once it has answered the questions submitted. I expressed the view in Bromley v Tonkin and Ors (Court of Appeal, 15 December 1987, unreported), and I adhere to it, that the course of authority supports the right of the trial judge further to question the jury in order to clarify answers which it has furnished to those questions originally submitted (see also Ex parte Burns (1893) 10 NSW WN 70; Cunningham v Ryan 27 CLR 294; R v Meany (1862) Le and Ca 213). It is only when the judge has accepted the answers, or the verdict, of the jury that they, or it, is final. (See also Mack v Elvy 16 SR 313.) If the jury does not remove the inconsistency between, or the ambiguity flowing from, answers it has given then, as a general rule, a judgment entered upon the basis of those inconsistent or ambiguous answers cannot stand.

In order to determine whether an inconsistency arose in the present case it is necessary to look to the course of the trial and the case which the respondent sought to make. For this purpose it is necessary to concentrate only on the first two publications - that is the statements to Mr Hay and the interview which followed.

The respondent's first claim was that the appellant had made statements in the pre broadcast interview which conveyed two imputations each of which was defamatory. That claim was accepted by the jury. The jury accepted that the appellant had made the statements which are set out in question 1, that those statements conveyed the imputations for which the respondent contended and that the imputations were defamatory. The answers to the questions relating to the first claim were (setting to one side the amount of the damages) perfectly rational and internally consistent. They demonstrate the conclusion of the jury that the words used by the appellant conveyed the pleaded imputations.

The difficulty concerns the inter relation between the questions on the first claim and those on the second. That inter relation arose in this way - the respondent asserted that what was said in the broadcast interview conveyed exactly the same imputations as arose from what the appellant had privately told Mr Hay before the broadcast. However, the appellant had said relatively little during the broadcast interview and it is plain that the respondent's counsel apprehended that it would be difficult to persuade the jury that the imputations were conveyed solely by the appellant's statements during the broadcast. In order to meet this difficulty he sought to rely on everything that was said in the broadcast interview. The imputations, he sought to argue, arose not only from the words spoken by the appellant but from the combination of his words and those spoken by Hay.

In order to sustain this argument he undertook the task of persuading the jury that Hay was republishing the imputations which the appellant had made when he first spoke with Hay and that he had done so in circumstances in which the appellant could be held liable for that republication.

In order to fix liability on the appellant for such republication as occurred in the broadcast interview it was incumbent upon the respondent to satisfy the jury that one of the conditions expressed by Lopes LJ in Speight v Gosnay (1891) 60 LJQB at 232 was satisfied. Those tests, omitting one not presently relevant, are expressed in Gatley on Libel and Slander (8th Ed) para 267 in these words:

"The original publisher is, however, liable in three cases stated in Speight v Gosnay:

(i) where he authorised or intended the person to whom he published the words to repeat or republish them to some third person;

(ii) where the repetition or republication of the words to a third person was the natural and probable result of the original publication;"

In a straightforward case the concept is capable of simple explanation. If, for instance, A says to B that "C is a murderer" and B repeats the statement to D it is not difficult to understand that A will be liable for the republication to D if he intended that republication or it was a natural and probable result of his statement to B.

But in this case the position was not so simple. The respondent did not say that Hay alone republished the original defamatory imputations. What he said was that in combination the appellant's statements (for which he would be liable independently of any question of republication) and those made by Hay (for which the appellant could only be liable if they constituted republication, in circumstances attracting responsibility, of his earlier defamatory statements) conveyed the same imputations as had been conveyed in the first interview. Put more simply the respondent asserted that the appellant had put words into Hay's mouth which together with things he himself said publicly conveyed the defamatory messages he had earlier passed on.

This case involved some complexity and called for the exercise of great care in the expression of the directions to the jury. Further to complicate the matter some things were said by Hay which obviously did not come from the appellant and for which he could not have been responsible. In addition, the broadcast interview was much longer than the earlier one and there was room for the view that while the appellant's statements in the private interview clearly conveyed the imputations upon which the respondent relied what was said in the broadcast, a transcript of which I will annex at the end of these reasons, did not.

It is appropriate now to return to the questions which were submitted to the jury. Question 5(a) posed the issue of the appellant's intention - did he make his statements in the first interview with the intention that Hay repeat them over the air? The affirmative answer seems, from the summing up, to have been invited by counsel for the appellant and in any event was not surprising.

The apparent inconsistency arises from the next two answers. Answer S(a) having set the scene for the jury to consider whether the libels were in fact republished the jury were invited in question 6 to determine whether words to the same effect as those spoken in the early interview were, in effect, repeated. Again it would appear that there was no contest on this issue at the trial for his Honour said:

"Tf you answer question 5(a) 'yes', or (b) 'yes' - you then go to 6, were the words or words to the same effect re-published on Radio Station 2KY on 23 April 1984? Well, once again, members of the jury, you probably will not have a problem there. You have heard the programme. It is a matter for you, and you have heard that Mr Elliott does not contest that matter, and you will answer that question 'Yes'."

In that context the answer is not surprising. But the finding in answer 2 that the words spoken in the first interview conveyed the defamatory imputations when coupled with the answer to question 6 should, it seems to me, logically have required the jury to provide the same answers to question 7 as it did to question 2.

If the same words were used in both publications then it is not possible to see how different answers could have been given to questions 2 and 7. This is probably of little moment because the same words clearly were not used. There was a marked difference between the interviews.

The real question was whether words to the same effect were used in the later interview. If the correct answer was "yes" then the words necessarily conveyed the same defamatory imputation as the words used in the earlier interview - otherwise they would have not been words "to the same effect" - they would have been to different effect.

As it happened the jury answered questions 7(a) and (b) in the negative. These answers were not remarkable as there was a serious issue concerning these questions. But I do not understand how answers 2, 6 and 7 can stand together.

If the words used in both interviews were, as I have sought to point out, to the same effect then if one series carried a defamatory meaning so did the other: This was not a case in which it could be suggested, and it was not suggested, that even if words were used during the broadcast interview to the same effect as words spoken during the interview preceding the broadcast there was anything else said on the second occasion which qualified or cut down the imputations which they carried.

In my opinion the answer to question 6 cannot stand with the answers to questions 2 and 7. The inconsistency led to an ambiguity which was not resolved. Accordingly the trial miscarried and the judgment should be set aside and a new trial ordered. Although the court has power to order a limited new trial and the inconsistency did not touch the determinations on the third publication both parties urged the court, if it concluded that there should be a new trial, to order a general new trial. That course is, it seems to me, appropriate in all the circumstances.

This conclusion renders it strictly unnecessary to consider any of the other grounds of appeal which were raised. Notwithstanding I think it desirable that I indicate my views in respect of two other grounds. My discussion of the first will explain my earlier statement that the appellant has only himself to blame for the difficulties which were created during the trial.

In that ground the appellant seeks a new trial broadly upon the grounds that his Honour exercised his discretion erroneously in declining to grant the appellant an adjournment of the hearing.

On 16 September 1987 the hearing of the case was specially fixed to commence on | February 1988. In December 1987 two events of note occurred. Firstly, the solicitor for the appellant gave him notice of his intention of ceasing to act and, secondly, the solicitors for the respondent gave notice to the appellant's solicitor that at the hearing they would seek to rely on the publication of further allegedly defamatory material by the appellant as going to the aggravation of the damages claimed by the respondent. The appellant's solicitor reacted rather strongly, although not surprisingly, to the late notice of the additional particulars of aggravated damages but appears to have taken steps to bring the new material to the attention of the appellant.

In January 1988 a notice of ceasing to act was filed by the appellant's solicitor in the court and a copy was served upon the respondent's solicitors. There the matter stood until 1 February when the matter was called on for hearing. The appellant did not appear but his wife did. She informed McInerney J that her husband had travelled to Hong Kong and that he had been prevented from returning to Sydney on 31 January 1988 by an illness he had suffered in Hong Kong. McInerney J adjourned the case until Wednesday 3 February.

On this occasion the appellant's wife again appeared and produced to his Honour a medical certificate which could not be regarded as having provided compelling evidence in support of the application she then made for a further adjournment. But that was not all that was put before his Honour. The solicitors for the respondent had investigated the bona fides of the adjournment application immediately following his Honour's original grant of an adjournment and produced additional material bearing on that issue. What was then produced led his Honour to say this:

"T can only conclude from those facts that when Mr Dempster left Australia on 29 January he had no intention of attending the hearing of this matter on | February 1988. Further, on the evidence before me the only conclusion that I can draw from the evidence so far disclosed is that he has attempted to deceive the court by deceiving a doctor in Hong Kong to produce a medical certificate that could be used in this court to justify an adjournment on the basis that he had to postpone his trip to Shanghai. It does not require me to make any further comment other than to say that a very disturbing situation has developed in this matter. I believe that there has been a deliberate attempt to deceive me into granting this man an adjournment."

His Honour thereupon refused the application for an adjournment and the trial commenced. The appellant's wife had earlier stated that the appellant had no funds with which to retain legal representation. Accordingly, the trial proceeded on Wednesday 3 February without any representation for the appellant and on that day a number of witnesses, including Mr Hay, were called to give evidence. On the next day Mr Elliott, junior counsel, announced his appearance for the the appellant and he continued to represent him during the entirety of the trial. He did not, however, make any application to recall those witnesses who had given

evidence and been excused, and he did not call any evidence on behalf of the appellant to rebut the evidence given by the various witnesses called in the respondent's case.

In fairness to Mr Elliott it should be said that he was placed in a very difficult situation. He had been briefed during the course of the trial. Defamation actions are notoriously difficult. The appellant did not return to Australia until the weekend by which time the evidence had concluded so that his instructions came from elsewhere, presumably Mrs Dempster. But if his Honour's statements were justified the difficulties in which Mr Elliott found himself were clearly of the appellant's making.

I do not propose to analyse in these reasons the evidence which led his Honour to make those highly critical comments about the appellant. It seems to me that the evidence, which included affidavits sworn by residents of Hong Kong, provided more than ample material upon which to base the criticisms which were made and to form the conclusions which his Honour reached. Any diffidence which I might otherwise have entertained on this conclusion, and I emphasise that I have none, would, in any event, have been dispelled by the complete failure of the appellant to endeavour to demonstrate to his Honour that the application for an adjournment had been bona fide and the strong criticism made of the appellant had been unjustified. Such an attempt could have been made if, for instance, the appellant had sought an adjournment of the hearing on the Monday he had returned to Australia. No such application was made.

But quite apart from that possibility, the appellant's conduct in seeking the adjournment was called in question and relied on by the respondent in an application which he made for an order that costs be paid on an indemnity basis. Here was the ideal opportunity for the appellant to rebut the criticisms which had been made by McInerney J. But again he was mute. He put on no evidence and allowed the application to be determined without in any way seeking to show that the trial judge had been wrong to conclude that he had attempted to deceive the court. In these circumstances I regard the criticisms of his Honour's judgment as without any merit and I would reject them.

The other ground of appeal with which I wish to deal shortly is that which raises the excessiveness of the damages. Lengthy submissions were made by both parties in relation to this ground and a number of difficult questions, particularly concerning republication and aggravation, were discussed. In view of the circumstance that there will be a new trial conducted in very different circumstances and, possibly, raising different issues I do not think it helpful to discuss those various questions. However, I should indicate my view that even

making full allowance for the right of the jury to award aggravated damages the amounts which it actually awarded were beyond all reasonable bounds. It seems to me that the jury failed to recognise and give proper weight to the fact that the statements which carried the defamatory imputations were made, in each instance, to single individuals. In my opinion an award of $120,000.00 for the making of the defamatory imputations, which I accept were relatively serious, to a single person on each occasion was out of all proportion to the circumstances of the case (per Morris LJ in Scott v Musial (1959) 2 QB 429, at 437; Dingle v Associated Newspapers Ltd, (1961) 2 QB 162, per Devlin LJ at 190).

The ordering of a new trial which would normally follow from the conclusion that the answers tendered by the jury were ambiguous was resisted by the respondent. In short his counsel submitted that the appellant's conduct, details of which are discussed in McInerney J's judgments on the adjournment and costs,

possibly led to the trial miscarrying and certainly resulted in the inflation of the costs of the trial and operated to disentitle the appellant to the order he sought. The court should, he submitted, exercise its undoubted discretion to refuse a new trial.

It must be accepted that the appellant's conduct did increase the cost of the trial and, possibly, had a disruptive effect upon it. Moreover, the appellant did not seek to answer the charges of misconduct made by the respondent and accepted by his Honour in the two judgments. Notwithstanding, every litigant is entitled to a fair trial and should not, in general, be held disentitled to remedies normally flowing from a miscarriage of justice unless, perhaps, his conduct was a material cause of the trial miscarrying. In all the circumstances I do not think that it would be a proper exercise of discretion to deny the appellant his new trial because of the matters raised by the respondent.

The respondent has sought the imposition of a number of orders pursuant to the powers set out in SCR Pt51 r16(5). The first order sought is that the sum of $70,000 paid into court pursuant to an earlier order of the court on 25 July 1988 remain in court pending the outcome of the new trial. The order was made by the Court in the following circumstances. When directing the entry of judgment McInerney J ordered a stay of proceedings for a period of twenty-eight days upon the filing of a notice of appeal within that period and upon the payment to the respondent, or his solicitors, of the sum of $70,000.00 within the same period. The appellant moved the Court of Appeal seeking a further stay upon terms which did not involve him in paying the respondent the said sum.

Having regard to the fact that the appellant challenged the jury's verdict on liability the court concluded that the appellant should pay the sum of $70,000.00 into a fund to be administered by the solicitors for the respective parties and invested by them for the benefit of the ultimate victor of the litigation. Later that order was varied by requiring that the money be paid into court to abide the outcome of the appeal or until further order of the Court.

A question has been raised whether it is within the power of the Court to impose the condition sought but I do not find it necessary to resolve that issue as I am of opinion that it would not be appropriate to order that the sum of $70,000.00 remain in court. In saying this I am mindful of those considerations which were advanced by the respondent's counsel in support of his submissions. These considerations focused on the appellant's conduct which led, according to McInerney J, to an increase in the cost of the first trial and which suggested that the appellant had been endeavouring to delay and frustrate the respondent in the prosecution of his claim.

Although the appellant's conduct was deserving of severe criticism, and was criticised by McInerney J, I do not consider that it presents as a second reason in the circumstances of this case for the court to impose the condition sought in the exercise of its discretion. The sum of $70,000.00 was paid into court as security for the judgment and costs and as the appellant was successful in the appeal it would, in my opinion, be contrary to principle to require that the amount remain in court. However, as will later appear I am of opinion that the appellant should be ordered to pay certain costs associated with the first trial irrespective of the outcome of the new trial and that it would be appropriate, in the circumstances, to order that $15,000.00 remain in court as security for those costs.

The respondent has also sought the imposition of a large number of additional conditions. I do not think all the conditions should should be made and in particular I do not believe that the respondent should be entitled to rely on the

evidence of those witnesses called at the trial who were not cross-examined. I do think, however, that the costs of bringing Messrs Guinness and Brettell to Australia for the first trial should be borne by the appellant whatever the result of the re-trial. I opt for this order rather than accede to the respondent's request that their evidence may be read from the transcript without calling them. Although there is much to be said in favour of making that order I am persuaded by the limited cross-examination of those witnesses and counsel's statement during the appeal that the appellant denies the statement which Mr Guinness attributed to him that the order I propose would better accord with justice. It is also appropriate to order that the appellant pay the costs of the adjournment application which was made on the first day on which the case was listed for hearing and any costs thrown away by the granting of the adjournment.

The judgment and costs order entered on 28 March 1988 be set aside.

Subject to order 6, costs of the first trial to abide the event of the new trial.

The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Acct.

The costs of bringing Messrs Brettell and Guinness to Australia for the first trial be paid by the appellant whatever the outcome of the new trial.

The appellant to pay the costs of the adjournment application before McInerney J and the costs thrown away by the granting of that application.

The sum of $15,000.00 remain in court until further order of the court as security for the costs which the appellant has been ordered to pay. The balance of $55,000.00 should be repaid to the appellant.

The appellant within seven days to file and serve a statement verified on oath setting out his whereabouts on each of the dates, 29th January to 10th February 1988 inclusive.

The respondent be permitted to rely in the new trial on the following affidavits, if relevant, without the need for the deponents to attend and give oral testimony or be subjected to cross-examination: Alan Hubert Day sworn 1 February 1988, Kin Wo Chan sworn | February 1988 and 2 February 1988, Yan Wai Warne sworn on | February 1988 and 2 February 1988(2) and Paul Laurence Brettell sworn 3 February 1988.

The respondent also seeks an order that the hearing of the new trial be expedited. In principle this is an appropriate case for the expedition of the new trial. I say this having in mind particularly the finding of McInerney J that the appellant has been engaging in delaying tactics. However, the respondent has also informed the court that he intends to seek leave to file an amended statement of claim. I do not think it appropriate to make an order for expedition until the pleadings are complete and I am of opinion it is more appropriate that the interlocutory procedures, including an application for expedition, be controlled by the judge in charge of the Defamation List rather than that this Court make orders at this stage. I would simply state that, subject to what occurs in the future, it seems to me that it would be appropriate that such an order be made in due course.

Handley JA I agree with the orders proposed by His Honour and with his reasons for those orders.

JOBNAME: No Job Name PAGE: 12 SESS: 1 OUTPUT: Fri Oct 19 11:04:19 2007

The judgment and costs order entered on 28 March 1988 be set aside. There be a new trial of the action.

Subject to 0.6, costs of the first trial to abide the event of the new trial. The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act.

The costs of bringing Messrs Brettell and Guinness to Australia for the first trial be paid by the appellant whatever the outcome of the new trial. The appellant to pay the costs of the adjournment application before McInerney J and the costs thrown away by the granting of that application.

The sum of $15,000.00 remain in court until further order of the court as security for the costs which the appellant has been ordered to pay. The balance of $55,000.00 should be repaid to the appellant.

The appellant within seven days to file and serve a statement verified on oath setting out his whereabouts on each of the dates, 29th January to 10th February 1988 inclusive.

The respondent be permitted to rely in the new trial on the following affidavits, if relevant, without the need for the deponents to attend and give oral testimony or be subjected to cross-examination: Alan Hubert Day sworn | February 1988, Kin Wo Chan sworn | February 1988 and 2 February 1988, Yan Wai Warne sworn on | February 1988 and 2 February 1988(2) and Paul Laurence Brettell sworn 3 February 1988.

Counsel for the Appellant: H Nicholas QC and D Elliott Solicitor for the Appellant: Tim Weissel, Burwood Counsel for the Respondent: T Tobin QC and M Sexton

Solicitors for the Respondent: Greaves Wannan and Williams

At a glance

Court

Decision date

Before

Source

Judgment (125 paragraphs)

Parties

Cases Cited (1)