Stead v Fairfax Media Publications Pty Ltd (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 08 February 2021
• Neutral Citation: [2021] FCA 65
• Court: Federal Court
• Date: 08 February 2021

Federal Court of Australia

Stead v Fairfax Media Publications Pty Ltd (No 2) [2021] FCA 65

File number:	NSD 2153 of 2019
Judgment of:	LEE J
Date of judgment:	8 February 2021
Catchwords:	PRACTICE AND PROCEDURE – distinction between verdict and judgment at common law – order in terms of verdict and judgment in judge alone trial ahistorical – order for judgment only ; COSTS – whether to award indemnity costs – whether rejection of first offer of compromise unreasonable – assessment of whether judgment obtained was more favourable than the terms of the first offer – artificiality in assessing success of claim by reference to the different causes of action and imputations pleaded – need to assess whether, as a matter of substance, one state of affairs (that provided for by the judgment) is more favourable than another state of affairs (that provided for by the offer) – rejection of offer unreasonable – indemnity costs awarded in accordance with r 25.14(3) of the Federal Court Rules 2011 (Cth)
Legislation:	Evidence Act 1995 (Cth) s 131 Federal Court of Australia Act 1976 (Cth) ss 23, 37M, 43 53A, 53B Federal Court Rules 2011 (Cth) r 25 Defamation Act 2005 (NSW) s 40 Supreme Court Rules 1970 (NSW) Pt 22 (prior to amendment by Supreme Court Act 1970 - Supreme Court Rules (Amendment No 405) 2005 (2005-407) (NSW))
Cases cited:	CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Ltd [2008] FCAFC 173; (2009) 15 ANZ Insurance Cases 61-785 Commercial Union Assurance Company of Australia Limited v Pelosi (No 2) (unreported, NSWCA, Handley, Sheller and Powell JJA, 27 February 1996) Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 Fotheringham v Fotheringham (No 2)[1999] NSWCA 21 Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 NH v Director of Public Prosecutions for the State of South Australia[2016] HCA 33; (2016) 260 CLR 546 Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 Phillips v Ellinson Brothers Pty Ltd(1941) 65 CLR 221
Division:
Registry:
National Practice Area:
Number of paragraphs:	31
Date of hearing:	4 February 2021
Counsel for the Applicant:	Ms S Chrysanthou SC and Mr B Dean
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondents:	Ms L Barnett
Solicitor for the Respondents:	Banki Haddock Fiora

ORDERS

		NSD 2153 of 2019
BETWEEN:	ELAINE STEAD Applicant
AND:	FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN 003 357 720) First Respondent ; JOE ASTON Second Respondent

order made by:	LEE J
DATE OF ORDER:	8 February 2021

THE COURT ORDERS THAT:

1. Judgment be entered for the applicant against the respondents in the sum of $296,500.

2. The respondents pay the applicant’s costs of the proceeding (including any costs the subject of previous costs orders or any reserved costs) from 11am on 22 April 2020 on an indemnity basis, and otherwise on a party and party basis.

3. By 4pm on 9 January 2021, the applicant is to notify the Associate to Justice Lee and the respondents of any application for a lump sum costs order in which case, subject to any request to be heard further by any party being received prior to 4pm on 10 January 2021, orders will be made in Chambers which, in the opinion of the Court, facilitate the determination of the lump sum costs assessment as quickly, inexpensively and efficiently as possible.

REASONS FOR JUDGMENT

LEE J:

A INTRODUCTION

1. In the primary judgment, Stead v Fairfax Media Publications Pty Ltd[2021] FCA 15 (PJ) (at [314]), I directed the parties to provide a minute of order to give effect to my reasons. I did so conscious of the fact that there may be a residuum of dispute as to three areas, namely: (a) whether Fairfax and Mr Aston should be enjoined, as initially sought by Dr Stead; (b) the quantum of any interest; and (c) the appropriate order as to costs.

2. As it has turned out, the parties have commendably resolved all issues other than as to costs, and I have been provided with a minute of order by which the parties have agreed that the following order should be made to reflect the reasons:

Verdict and judgment be entered for Dr Stead in the sum of $280,000, plus interest in the sum of $16,500.

3. It follows that there are only two outstanding issues: first, whether an order should be made in the terms proposed by the parties; and secondly, the appropriate order that should be made as to costs.

4. I will deal with each of these issues in turn. For clarity, I note that all defined terms are as set out in the PJ unless otherwise stated.

B THE PROPOSED ORDER

5. I do not propose to make the order in the minute provided to the Court. I should explain why.

6. As was noted in NH v Director of Public Prosecutions for the State of South Australia[2016] HCA 33; (2016) 260 CLR 546 (at 584 [78] per French CJ, Kiefel and Bell JJ), the “juristic character of a verdict is a collective act of [a] jury”. Speaking in broad terms, a verdict at common law is the opinion of a jury on a question of fact in a civil or criminal proceeding. A general verdict, however, “involves a compound of law, fact, and the application of law to fact”: Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 (at 197 per McHugh JA). What is evident is that historically, irrespective as to whether the verdict is general or special, there is a fundamental difference between a verdict and a judgment.

7. At common law, no judgment could be entered without the verdict of a jury: Phillips v Ellinson Brothers Pty Ltd(1941) 65 CLR 221 (at 228–9 per Rich J). The verdict of the jury could be a general verdict, a special verdict or a notional general verdict subject to the decision of the Court on a special case.

8. Initially, at common law, it was the exchange of pleadings at Westminster which settled the issues for determination and upon their identification they contained one or more questions to which a jury could either answer yes or no. When the jury gave a verdict which answered the questions in the issues for trial under the nisi prius system, a postea was awarded to the successful party upon receipt of the verdict and the successful party then moved the full court for judgment at the beginning of the next term. Unless an unsuccessful party was able to move for a new trial (or for some reason was entitled to judgment notwithstanding the verdict), judgment would then be recorded in the records of the Court in favour of the party to whom the postea had been awarded.

9. As Young A-JA explained in Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 (at 358–61), these early processes were the subject of pre-Judicature Act, common law procedural reform in the early part of the 19^th Century, but in New South Wales, prior to procedural fusion in 1972, at common law, the prevailing procedures always reflected the fundamental distinction between verdict (as an act of a jury) and judgment (the entry of which was an act of a judge or judges). Although the separate step of bringing a separate motion for the entry of judgment had been replaced by the judge ordering judgment after receipt of a verdict (subject to any application that may be made not to proceed with this course), in the Supreme Court, after the jury’s verdict was taken, the Associate endorsed the verdict on the issues for trial and provided them to the Prothonotary who then separately entered the judgment in the Court records. Of course, the...