Vilo v John Fairfax and Sons Limited

[2002] NSWSC 794

CITATION:	Vilo v John Fairfax & Sons Limited and Anor [2002] NSWSC 794
FILE NUMBER(S):	SC 17027/83
HEARING DATE(S):	3 September 2002
JUDGMENT DATE:	3 September 2002
PARTIES :	Enn Vilo - Plaintiff John Fairfax and Sons Limited - 1st Defendant David Syme and Co Limited - 2nd Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	CA Evatt - Plaintiff JS Wheelhouse - Defendants
SOLICITORS:	Mallesons Stephen Jaques - Defendant
DECISION:	Plaintiff's notice of motion dismissed; Plaintiff to pay defendant's costs for the notice of motion.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list

SIMPSON J

Tuesday 3 September 2002

17027/1983
Enn VILO v JOHN FAIRFAX & SONS LIMITED & Anor

JUDGMENT

1 SIMPSON J: By two publications in or about August 1983 the defendants defamed the plaintiff who subsequently commenced proceedings. After a period of sixteen years these proceedings came before a jury who awarded him a total amount of $520,000 by way of damages. That did not conclude the litigation because there remained outstanding the determination of a defence of qualified privilege, in which I delivered judgment on 6 October 2000, rejecting that defence.

2 The consequence of that conclusion was, in effect, that the plaintiff became entitled to the amount of damages assessed by the jury. Thereafter the plaintiff made a claim for interest on the verdict moneys, and that was heard on 12 October 2000 and judgment delivered on 15 December 2000. As part of that judgment I directed the parties to prepare short minutes of order reflecting my conclusions in that judgment and any others that remained outstanding, in which I expressed the hope that the short minutes would finalise the proceedings in this Division.

3 The plaintiff's solicitors prepared draft short minutes of order containing calculations of interest. That occurred on or about 15 December 2000. On 19 December 2000 the defendants' solicitors accepted the plaintiff's calculations and agreed to the filing of the orders in the form proposed. The orders were entered on 11 January 2001.

4 It is now submitted that the orders, as drafted, contained or reflected a slip on the part of the plaintiff's legal advisers. What the orders encompassed was an award of interest at two per cent from the date of the defamatory publication. They did not include any cut-off date. The interest allowed in the orders was to be calculated at two per cent, in accordance with my judgment. The defendants made payment in accordance with the short minutes of order, and this was accepted by the plaintiff.

5 What the plaintiff now submits is that these orders, as proposed by his legal advisers, were erroneous because he would in fact be entitled to interest at a significantly greater rate from the date the judgment took effect, and the orders should have contained something to acknowledge this.

6 It is further submitted on behalf of the plaintiff that the date the judgment took effect should be identified as 22 November 1999, the date of the jury verdict, and that from that date he would be entitled to interest at the Supreme Court rate which is, as I said, significantly greater than two per cent.

7 There are two reasons why I reject this application. The first is that a defamation trial is not concluded until the defence of qualified privilege (where raised) has been determined. That determination is an integral part of the determination of a claim for defamation. A jury assessment of damages is contingent upon the determination of the qualified privilege defence. Why it took almost another year for the qualified privilege defence to be litigated is something of which I have no recollection and I do not propose to look into. The fact is that the plaintiff's claim was not concluded until judgment on that defence was delivered.

8 Accordingly, I think it is quite wrong to suggest that the plaintiff became entitled to an award of damages and to interest in November 1999, or at any time before the qualified privilege defence was decided.

9 The second reason is to be found in the formulation of the orders proposed on behalf of the plaintiff, to which I have already referred, and in the payment by the defendants and acceptance by the plaintiff of money in accordance with those calculations. Even if the plaintiff had had some colour of argument prior to those events, at the very latest his acceptance of the moneys paid by the defendant precludes any further claim by him.

10 Accordingly, the plaintiff's notice of motion is dismissed.

11 I order the plaintiff to pay the defendants' costs of the notice of motion.

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Last Modified: 09/06/2002