Evatt v Nationwide News Pty Ltd (No 2)

[1999] NSWCA 143

CITATION:	Evatt v Nationwide News Pty Ltd (No 2) [1999] NSWCA 143
FILE NUMBER(S):	CA 40175/97
HEARING DATE(S):	3 March 1999
JUDGMENT DATE:	24 May 1999
PARTIES :	Lyndall Evatt Nationwide News Pty Ltd (t/as Cumberland Newspapers)
JUDGMENT OF:	Sheller JA; Powell JA; Giles JA

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 1049/93
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	Appellant - J R Young Respondent - T S Hale & M S C Champion
SOLICITORS:	Appellant - Charters, Auburn Respondent - Cropper Parkhill, Sydney
CATCHWORDS:	APPEAL - appeal upheld - judgment for plaintiff - as of what date - date of trial ; APPEAL - costs - offer of compromise before trial - continuing effect - whether to order otherwise.
DECISION:	Order made on 19 April 1999 varied by adding "such costs to be paid on an indemnity basis from 20 May 1996."

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40175/97
CL 10493/93

SHELLER JA
POWELL JA
GILES JA

Monday 24 May 1999

LYNDAL EVATT
v
NATIONWIDE NEWS PTY LTD
(t/as CUMBERLAND NEWSPAPERS) (No 2)

JUDGMENT

1 THE COURT: When judgment was given in this appeal on 19 April 1999, the appellant applied for an order in relation to interest and a special order as to costs. Directions were given for exchange of written submissions, and it was agreed that the application should be determined on the written submissions.

Interest

2 The orders made on 19 April 1999 included “Judgment for the plaintiff for $20,000”. The amount of $20,000 was the damages assessed by the jury, and if Newman J had given judgment for the appellant on 6 March 1997 would have been taken up by his Honour.

3 The appellant applied for interest on the $20,000 from the date of publication of the article, 27 January 1993, at the rate of 2 per cent per annum. The respondent did not contest the entitlement to interest, but the parties disagreed on the date to which the interest should be calculated.

4 The appellant submitted that the interest should be calculated to 6 March 1997, saying that that was the date as of which the judgment of Newman J, if in her favour, would have been given. The respondent submitted that interest should be calculated to 19 April 1999, saying that that was the date as of which the judgment took effect by virtue of the decision of this Court. At stake was interest pursuant to s 95 of the Supreme Court Act 1970 on the amount of interest in the judgment from 6 March 1997. The amount was hardly worth the attention given to it.

5 In our view, in order that the appellant be placed in the position she should have been in as at 6 March 1997, it should be ordered that the judgment for the plaintiff for $20,000 take effect as of 6 March 1997, with interest calculated to that date. The amount of interest is not in dispute, $1,640. We vary the order made on 19 April 1999 to provide for judgment for the plaintiff “for $21,640 taking effect as of 6 March 1997”.

Costs

6 On 19 April 1999 an order was made that the respondent pay the appellant’s costs of the proceedings at first instance and of the appeal. The appellant served an offer of compromise pursuant to Pt 22 of the Rules on the respondent on 20 May 1996, offering to accept $12,000 plus costs. The respondent conceded that the appellant was entitled to indemnity costs of the trial from 20 May 1996. The parties disagreed on whether the costs of the appeal should also be on an indemnity basis.

7 Neither the appellant’s nor the respondent’s written submissions gave authority or reasoning for the result for which each contended.

8 Ettingshausen v Australian Consolidated Press Limited (1995) 38 NSWLR 404 at 410 establishes that the offer of compromise continued to have cost consequences for the appeal. But Commercial Union Assurance Company of Australia Limited v Pelosi (No 2) (NSWCA, 27 February 1996, unreported) and Fotheringham v Fotheringham (No 2) 1999 NSWCA 21 demonstrate that the discretion to otherwise order, and so negate the prima facie operation of an offer of compromise, may be enlivened according to the circumstances and outcome of the appeal.

9 Should there be an order otherwise in relation to the costs of this appeal? In the face of the offer of compromise, the respondent maintained on appeal the opposition to the appellant’s claim it had maintained at the trial. It was wholly unsuccessful. We do not think an order otherwise should be made. Accordingly, we vary the order made on 19 April 1999 by adding thereto “such costs to be paid on an indemnity basis from 20 May 1996”.

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