Well sadly the whole world seems to know about me now so I may as well come forth and tell my story. I was once an officer of the law in Coffs Harbour but had to leave this position because I was caught out being corrupt with a fellow detective there. I left the position because I had no other choice. My name was mud in the area so I moved to Newcastle where I went into the field of Law as a solicitor, nobody knew me there and nobody was aware of my criminal history.
I soon got settled in Newcastle and entered the field of Law as a Solicitor. I needed to make money again as I have a very severe gambling habit which required a lot of cash for me to support it. Before long, I was back in the TAB's betting my earnings away and feeding my downfall, all over again. I simply cannot beat the problem as it has a very harsh grip over me.
I tried to approach several TAB agents to seek a credit account for my betting habit but was knocked back at almost every location. I did however manage to obtain one agency which allowed me to credit bet, despite it being against the TABCORP policy, this was my saving grace as I needed to bet but had no money to do so. I commenced placing bets and ran up a large debt but was confident that I would win it all back. The more I tried to win, the bigger my debt become and before long, people were noticing what I was doing and started talking.
It wasn't long before someone reported the TAB agent to TABCORP and she was audited and lost her agency. TABCORP were taking her to court and her agency was put up for sale. It was all because of my selfishness and betting habit that she came into such an adverse situation but it was all her fault for letting me credit bet in the first place. If she had refused me like all the other agents did, she would still be running her TAB today. It also affected me greatly because I had nowhere to bet without cash anymore and the lady I was dating, also left me to start a relationship with a judge, so my backup funding was also gone. Newcastle had started to see my true colours very quickly and I was left drowning yet again.
I finally decided to go back to my ex-wife and start over. I am a loser and I need to realise that I am of no worth. I have posted past cases here to retaliate to people who I think are responsible for the negative posts but really, it is just a waste of time because they are long gone, the sentences have been served and nobody really cares at all. I am a lost person. I need to find some friends but everybody thinks I am a fool and nobody trusts me.
I would like to convey that I am willing to represent people to the best of my ability in all matters and I beg that you consider me because I am hated by my fellow peers and also by a large part of the community. I ask that you give me a second chance as people can come good if given the opportunity. Please consider me for your next legal issues. I will try to not let you down.

All the best,

Iain.

Iain Bruce is a pedophile and represents those like him. He has child pornography issues and a major gambling problem as well. Choose this idiot if you want the system to bury you deep in your own sh*t. He also thinks he can take on the Gladiators and people of that high caliber. He will soon see what a poor example of a man he is. DO NOT choose him for your legal needs, there are many genuinely good lawyers available. Steer away from this bottom dwelling leech.

f*ck, do you have an axe to grind?? Get a life and leave every else's life alone, loser!!

Regina v M C Adamcik [1996] NSWSC 563 (22 November 1996)

REGINA v Milan Carl ADAMCIK
60673/95

Friday, 22 November 1996

IN THE COURT OF CRIMINAL APPEAL

MAHONEY ACJ, McINERNEY J, BARR J

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Appellant convicted of making a false statement for financial advantage - whether evidence of admissions made to a private investigator ought to have been rejected by the trial judge as having been induced by false representations of fact.

RESERVED/EX TEMPORE: Reserved

ALLOWED/DISMISSED: Dismissed

HELD: evidence properly admitted.

Hello World,

I think it is time to let everyone know the truth about Mr. Iain Bruce. He is so full of himself that you will never obtain any true facts about him unless someone honest and totally unafraid of the idiot, discloses them to you and that certainly constitutes me. This man has a major GAMBLING problem. He is known to all Newcastle TAB outlets and has the customers who see him gamble, call him the "Big Fella". I can't be sure if that is because of the large amounts he bets on the races, or just because he is plain out fat. Whichever it be, he loves to be called that as he thinks it places him on a pedestal above everyone else, Iain's favorite place where he can look down on everyone because he is a barrister. The sad truth however, is that he doesn't gamble with his own money. He borrows from people and uses that to feed his habit. If he loses that borrowed money, he absconds to another TAB branch so as to borrow off someone different and avoid the person that he already owes. Legendary effort from a man who should have more decency but simply has ant sized testicles. In any case, I have spent considerable time talking to people that know this man and a great deal of information has been forthcoming. He really tells some feeble minded people his closest secrets, which are then so easy to acquire, it's almost child's play. I am generally not interested in moronic d*ckheads like Mr. Bruce, but he keeps on annoying me from a distance, thinking that it raises some sort of concern within me. LOL. He is really having a firm grip if he thinks I give a sh*t. I have however decided, to let people know what I know and we'll see who is more embarrassed at the end of the day. I am a nobody and nobody cares for a second about me and my life. I don't have any reputations to keep up and nor do I act like a retard so people notice me. It has taken me some time to obtain the facts which I intend to share with you all and I decided the best way to bring it to you is in chapters. Each post will be about something different and if nothing else, you may get a laugh out of it, but if my efforts are successful, you will see how the upper class barrister, abuses the common people. Without any more talk, the chapters that I will be beginning with are as follows and I will endeavour to get them posted as quickly as possible for the loyal followers of this thread.

Ch 1. How I borrow money from females and then use stand over tactics to prevent repayment.

Ch 2. My lies to mummy and the things she simply cannot ever know about me.

Ch 3. Deceiving the Ex-Wife, she believes my bullsh*t and it keeps me in a good place with her and with mummy.

Ch 4. My secret girlfriend and my inabilities to be a man where it counts.

Ch 5. How gambling has made me appear like the world's biggest loser.

These five chapters will complete part one of the series. Please keep checking back for constant additions to this thread.

Take care people and remember, how you treat others, is how others shall treat you.

I, need to exchange conversation with you.... PLEASE.. As soon as possible..... 0402 613 933.

Regina v M C Adamcik [1996] NSWSC 563 (22 November 1996)

REGINA v Milan Carl ADAMCIK
60673/95

Friday, 22 November 1996

IN THE COURT OF CRIMINAL APPEAL

MAHONEY ACJ, McINERNEY J, BARR J

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Appellant convicted of making a false statement for financial advantage - whether evidence of admissions made to a private investigator ought to have been rejected by the trial judge as having been induced by false representations of fact.

RESERVED/EX TEMPORE: Reserved

ALLOWED/DISMISSED: Dismissed

HELD: evidence properly admitted.

Regina v M C Adamcik [1996] NSWSC 563 (22 November 1996)

REGINA v Milan Carl ADAMCIK
60673/95

Friday, 22 November 1996

IN THE COURT OF CRIMINAL APPEAL

MAHONEY ACJ, McINERNEY J, BARR J

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Appellant convicted of making a false statement for financial advantage - whether evidence of admissions made to a private investigator ought to have been rejected by the trial judge as having been induced by false representations of fact.

RESERVED/EX TEMPORE: Reserved

ALLOWED/DISMISSED: Dismissed

HELD: evidence properly admitted.




JUDGMENT


MAHONEY ACJ: The facts are detailed in the judgment of Barr J which I have had the advantage of reading. His Honour's judgment enables me to go what, in my opinion, is the essential point involved in this appeal.
As Barr J has indicated, the appellant made or proposed to make a claim in respect of, as he suggested, the loss of his motor vehicle. His insurer was (I shall adopt the description used in argument) FAI. A Mr Tarrant was an employee of FAI whose purpose was to scrutinise claims made upon the company.

Mr Tarrant arranged for the appellant to come to his office in relation to the claim. At that office, Mr Tarrant contended, the appellant confessed that the claim was false: that he had not lost the vehicle but that it had been disposed of by him with the aid of members of his family or others. Mr Tarrant obtained from the appellant a document in writing acknowledging that the claim was false and made a recording of statements of the appellant to that effect.

If these statements were accepted without qualification, they were strong evidence that the appellant was guilty of the charge brought against him. His substantial defence was that the statements had been obtained by him under threat or by representation or otherwise in such circumstances that they should not be admitted against him at the trial. Mr Skinner's statement of the defence to this Court has been less than precise. However, for present purposes it is sufficient that I state the defence generally in this way.

The problem which, in my opinion, arises for decision arises from the way in which the preliminary ruling given by the trial judge was given and the way in which it was carried into effect at the trial.

What occurred has been stated in detail by Barr J; I shall state the matter only sufficiently to illustrate the problem which, in my opinion, arises. The admissibility of the statements was brought before the trial judge upon an interlocutory application made before the trial. Experience has shown that it is expedient that applications of an interlocutory nature be brought prior to the trial in order to test the admissibility of evidence of various kinds or otherwise to determine issues which, if they be raised for the first time for determination at the trial, will interfere with the continuity of the trial or otherwise impede the jury's consideration of the evidence. In my respectful opinion, the practice followed in this regard has been a beneficial practice. When, at the trial, the particular evidence is tendered or the particular matter argued, time may be saved by the judge giving effect to the ruling which previously has been given or, as circumstances may require, otherwise determining the matter by reference to what has been said in the interlocutory proceeding.

However, in order that this procedure will be effective, it is necessary for counsel and the Court, on the preliminary application, to define with sufficient precision what is the point upon which an interlocutory decision is to be sought and the evidence upon which the decision is to be made. Thus, it is plain that if a ruling be sought upon the basis that the evidence at the trial will be as indicated upon the interlocutory application and, at the trial, the evidence is different, the purpose of the interlocutory application will be defeated. If the basis of the application that is made or on which the point is argued upon the interlocutory application is, in the event, different from that at the trial, again, it may be inappropriate or wrong to hold the parties to the interlocutory ruling when the matter comes to be dealt with at the trial. In saying this, I do not pause to examine what in principle is the effect of an interlocutory ruling. It has not been suggested that that issue arises for decision in the present case. I have referred to these matters because they provide illustrations of the problem which, in my opinion, has arisen in the present proceeding.

Upon the interlocutory application, Mr Tarrant was called to give evidence of the statements and of the manner in which they were obtained. Counsel then appearing for the appellant cross-examined Mr Tarrant. At an early state in the cross-examination his Honour, as it was proper for him to do, sought from counsel an indication of the point of the relevant part of the cross-examination.

Counsel indicated to the judge, by way of justification of the cross-examination pursued by him, that he proposed to contest the admissibility of the statements and he put the matter in various ways. The Court has been provided with the many pages of transcript recording what took place on the application. The transcript does not, I think, purport to contain all of the exchanges between bench and bar but the Court must deal with the matter upon the basis of what the transcript records in respect of the present matter. As far as is recorded in the transcript, the basis indicated by counsel upon which the admissibility of the statements were to be contested were not indicated with precision. It appears from what counsel said that it was intended to contend that the statements had been obtained in contravention of s 410 of the Crimes Act 1900 because Mr Tarrant had, it was suggested, used threats or made false representations to the appellant to induce the statements.

What was there said did not raise the problem which, in my opinion, must now be considered. The present problem arose because, in explaining the basis of his cross-examination, counsel indicated that witnesses would be called to speak as to the manner of obtaining of the statements. Again, what the witnesses would be called to prove was not stated with particular precision: at least, the (perhaps abbreviated) record in the transcript does not indicate that counsel precisely stated what the witnesses would prove and the basis that would provide for contesting the admissibility of the statements.

But, at an early stage in the proceeding (reference has been made to pages 26-29 of the transcript of the first day of the interlocutory proceeding) his Honour ruled that he would not accept evidence from the proposed witnesses. Counsel indicated that he would, of course, be bound by that ruling.

Subsequently, from time to time during the course of the interlocutory proceeding, reference was made to the basis of the cross-examination and to what had been the intention of counsel, to call evidence from the witnesses. There was no clearer definition of what the witnesses would prove or the point of it and the witnesses were not in fact tendered. At the end of the interlocutory proceeding his Honour ruled that the statements would be admitted at the trial.

In order to understand what was done upon the interlocutory application and subsequently on the trial, it is necessary to refer in more detail to the basis on which his Honour ruled as he did. As has now emerged, the appellant now argues that the statements should not be admitted in evidence against him for two main reasons: because they were obtained by threats or false representations within the Act; or because (I shall state the matter briefly) of a plan or practice of interrogation adopted by Mr Tarrant which was objectionable to an extent that would render the statement inadmissible or liable to be rejected at the trial.

Upon the interlocutory application, the admissibility of the statements was in my opinion placed upon the first basis. Oversimplified, what occurred was that the judge, having had before him the evidence of Mr Tarrant, in chief and in cross-examination, and the contentions of the appellant, accepted what Mr Tarrant had said and held that there had been no threat or false representation which led to the making of the statements by the appellant. It is proper to record that neither counsel nor, in his rulings, the judge defined with precision what were the threats or representations alleged to have been made upon the basis of which the proceeding was brought. The general nature of the contentions may be said to have emerged from cross-examination but there was not at any stage the formulation with precision of the complaints upon the basis of which the admissibility of the statements was contested. But however that be, his Honour dealt with the interlocutory application upon the basis that the issue whether Mr Tarrant did what was complained of was to be determined by considering the evidence of the parties as to what happened on the particular occasion in question.

The alternative basis of attack upon the statements has also not been particularised with precision. Stated generally, the contention for the appellant is to the effect that it was the practice of Mr Tarrant, in his dealings with relevant applicants for indemnity under the company's policies, to follow a more or less standardised procedure. That procedure involved, inter alia, that Mr Tarrant would make a preliminary statement of the matter to the insured persons in a particular form; an interview would subsequently be held during which the only parties present were the insured and Mr Tarrant; Mr Tarrant would make statements or allegations suggesting misconduct by the insured and that he could be liable for what he had done under the criminal law; and Mr Tarrant would then present the position in a way which suggested that he, Mr Tarrant, had evidence upon the basis of which the insured, if he proceeded with the claim, could or would be prosecuted for a criminal offence. The suggestion, as it was put generally before this Court, was to the effect that this was Mr Tarrant's practice, that this practice had been followed in this case, that accordingly the account he gave of the circumstances in which he obtained the statements from the appellant were as the appellant said and not as Mr Tarrant said, and that this rendered the statements inadmissible.

Had evidence been tendered at the interlocutory stage in this way, at least two questions would have arisen: what was shown to be the practice followed by Mr Tarrant in interviewing claimants; and (if it was to be inferred that that practice was followed in the instant case) whether that practice rendered the statements inadmissible. Before this Court counsel tendered evidence of statements which, it was believed, the witnesses proposed to be called would have given on the interlocutory application and at the trial. The Court endeavoured to obtain from counsel a precise statement of what the evidence would have established, if accepted, and how the evidence, if accepted, would have resulted in the statements which Mr Tarrant the appellant made being inadmissible. For myself, I am unable to formulate precisely what it is that the appellant now contends in relation to these matters.

I come now to what occurred at the trial. Again, I shall state the matter in summary form. Counsel then appearing for the appellant contested the admissibility of the statements which Mr Tarrant said had been given to him. The judge and counsel referred to what had happened upon the interlocutory application. Counsel submitted that he should be allowed to call the witnesses who had been put aside at the interlocutory proceeding. The judge referred to the interlocutory ruling. He heard further argument from counsel and, after due consideration, adhered to the ruling which previously he had given. He effectively determined that the witnesses' evidence, if called, would not be admissible.

Had the matter been dealt with in strict formality, it would have been necessary for counsel for the appellant to have tendered each witness, to have asked of him the matters sought to be adduced, and to have had the ruling of the judge in respect of each of the witnesses. It was, of course, not necessary that these formalities be observed; it was convenient that the parties, as they did, adopt a practical approach to the matter. But the result of that no doubt beneficial approach has been that the Court does not have with particularity or precision what was the evidence which the witnesses would have given, the basis on which it was tendered and the basis on which it was rejected by the judge. That, in my opinion, has caused some difficulty in the present appeal.

It may, I think, be accepted that where there is an issue as to what a person did on a particular occasion, it will ordinarily be proper to adduce evidence that the person had a practice for dealing with the relevant matter, that the occasion was one to which the practice was appropriate, and that on that occasion he followed his practice: see Cross on Evidence (5th ed) par [1130]. In the present case, there was some admissions by Mr Tarrant which, perhaps, would have made more readily admissible evidence directed to such matters. In other words, it may have been admissible to establish by evidence of the witnesses the existence of the practice, its application in the present case, and the inference that it was followed in the present case. I refer to this because, at the interlocutory hearing, the judge appears to have concluded, perhaps because of the way the matter was put to him, that the evidence of the witnesses could go only to the credit of Mr Tarrant and not to establish practice or the like. I think that the judge ruled as he did at the interlocutory stage because, as the matter was put to him, the only basis for admissibility of the witnesses' evidence was one going to Mr Tarrant's credit.

However, at the trial, it is clear that a wider basis for calling the witnesses was suggested. The Crown does not now contest that. Nor does it contest that the evidence, put upon that more extended basis, would have been admissible. In view of the Crown's concession, I shall not pursue the detailed argument as to admissibility.

But, assuming the evidence to have been admissible and admitted, it remained to determine what the evidence established and whether what it established rendered the appellant's statements to Mr Tarrant inadmissible.

The fact alone that Mr Tarrant followed a practice in interviewing applicants for indemnity from his company would not, of course, render the statements made inadmissible. It was necessary for the appellant to show that that practice involved his making threats or untrue representations or otherwise warranted the rejection of the statements obtained. In order for this to be established, it was necessary for the appellant to make clear what it was that was to be alleged. As was pointed out in argument by Barr J, it was necessary for counsel to make clear for the judge and to this Court what precisely Mr Tarrant's practice, if followed, did which rendered the statements obtained inadmissible. Again, having considered Mr Skinner's written and oral submissions, I remain in doubt as to what precisely is alleged in this regard. To an extent, what is said in the written submissions is not fully supported by the evidence; what is said in the oral submissions is to an extent different. In saying this, I do not direct criticism at the form of counsel's submissions. The criticism is directed to a matter of substance.

The question to be determined is whether the judge, by his ruling, prevented evidence being given at the trial which should have been given. The matter may be illustrated by extrapolating matters which prompted questions during argument before this Court. I shall assume that the learned judge was wrong in concluding that the evidence of the witnesses proposed to be called would go only to the credit of Mr Tarrant and that that evidence would go to the establishment of the kind of practice to which I have referred. I shall assume that, as the Crown concedes, evidence of a practice followed on other occasions can be probative of what was done on the instant occasion. I shall further assume that, in ruling that the evidence sought to be tendered was inadmissible because it went only to the credit of Mr Tarrant, the judge was wrong and that, if a practice was to be established, the evidence should have been admitted. But, assuming such errors, the question remains whether the evidence, if it had been admitted, would have established a basis or bases for ruling that the statements made to Mr Tarrant were not admissible against the appellant. Upon the material and the arguments now before the Court, it does not appear to what basis the evidence would have gone and whether that basis would have rendered the statements inadmissible against the appellant. Thus, if at a trial, or upon an interlocutory proceeding which determines the course of the trial, the accused contends for the admissibility of evidence upon one basis and that basis appears unsupportable as, eg, not providing a basis for rejection of the statements, it is prima facie not open to him to contend on appeal that there was error below because, if the admission of the statements had been sought upon a different basis, they should have been admitted. At least, that is not open where the Crown may well, by evidence, have been able to negative the effect of that evidence or the contention based upon it.

That leads to the question what was it that the suggested practice of Mr Tarrant would have disclosed and whether that would have rendered the statements of the appellant inadmissible at the trial. Counsel was pressed by the Court to identify these matters. But, in the end, I am not sure what is the effect of the written and the oral submissions advanced. At the interlocutory and trial stages attention appears to have been directed mainly if not solely to the representation made by the appellant as to the value of the vehicle. It is difficult to see how what was done in that regard would render what he said inadmissible. Reference was made to the possibility of Mr Tarrant, by his size and demeanour, having intimidated the appellant. But this is a matter on which the judge ruled, as far as the evidence was before him at the interlocutory stage, against the appellant. It is difficult to see how the evidence of the other witnesses, as far as it is now presented to the Court, would or might have led to a different ruling.

In the end, I am not satisfied that if the judge was wrong in refusing to accept the tender of the evidence of the witnesses that was an error which operated to the detriment of the appellant. If each witness had been called the judge would no doubt have sought from counsel an indication of the basis of admissibility of the evidence: it is for counsel tendering the evidence to indicate the admissibility of it. If counsel had indicated that the witness would have established a practice, he would no doubt have been asked to indicate what in the practice rendered the statements inadmissible. If the evidence had been as is now suggested to this Court, there would be no basis for the admissibility of the evidence of such witnesses.

For these reasons, I am of opinion that the grounds of appeal have not been made out.

I am conscious of the effect which the conviction may have upon the appellant and his future. I have therefore drawn out at some length the considerations which, as I appreciate the arguments advanced to this Court, are now put forward for him. If the refusal to allow the witnesses to be called at the trial had been wrong in the sense that there was any basis for the admissibility of their evidence, I would have considered whether the conviction should be set aside and a new trial ordered. But the case that is now advanced for the appellant is, in my opinion, a case different from that advanced at the trial. It is a case which, had it been advanced at the trial, could have been met by the Crown and properly considered would not have led to the statements by him to Mr Tarrant being withdrawn from the jury.

I therefore agree with the orders proposed by Barr J.


McINERNEY J: I agree with the order proposed by Barr J, for the reasons he has given.


BARR J: The appellant was convicted following a trial by a jury of a charge that on or about 24 June 1991 at Newcastle with intent to obtain for himself a financial advantage he made a statement, namely a motor vehicle theft claim form in the name of FAI Insurance Group, which he knew to be false in a material particular. The Crown case was that the appellant had had his motor car taken away and disposed of and had claimed on his insurance policy, pretending that the car had been stolen. He appeals against his conviction.

In March 1995 an application took place over three days challenging the admissibility of certain evidence the Crown wished to rely on. The first two grounds of appeal arise out of determinations then made by his Honour Judge Gallen.

The first ground of appeal contended that his Honour erred in refusing to exclude the evidence of a number of Crown witnesses, chiefly Mr Peter Donald Tarrant, an investigator engaged by FAI Insurance Group ("FAI"), who had interviewed the appellant about his claim and whose evidence was to the effect that the appellant had admitted to him that the claim was false. It is necessary in order to put the appellant's submissions into context to recount the evidence in some detail.

Mr Tarrant's statement of 5 September 1991 was tendered and may be summarised as follows. On 2 September 1991, having read certain documents and having made certain enquiries concerning the appellant's insurance claim, Mr Tarrant arranged for the appellant to attend his office. A conversation took place between the appellant and Mr Tarrant. Mr Bill Nicholas, a licensed private enquiry agent employed by Mr Tarrant's company, was also present. Mr Tarrant asked the appellant to go over the facts of the theft again, and he did. He asked him how much he had paid for the car and how he had financed the purchase. The appellant answered those questions. Then Mr Tarrant interrupted the conversation for a few minutes and asked Mr Nicholas to leave him and the appellant to talk by themselves, and that is what happened. On the resumption of the conversation Mr Tarrant told Mr Adamcik that he did not believe that he had been telling the truth about the claim. He said that he did not believe that he had paid as much for the car as he had told FAI and that he did not believe that the car was stolen. He also said that it was insured for more than its market value on an agreed value policy. The conversation continued until Mr Tarrant said:

"As well as my doubts of the claim, the insurance company received an anonymous phone call from a woman, informing them that the vehicle was arranged to be removed by you so that you could claim on the insurance company."

According to Mr Tarrant's statement the appellant did not respond, so he continued:

"Not only did the insurance company receive an anonymous phone call but I understand your mother received one as well about the same subject."

Mr Tarrant urged the appellant to think about what he was doing and tell the truth. The respondent, who had previously stated his intention to study law, said, "I'll never be a solicitor now", and became upset.

Mr Tarrant asked him whether his vehicle was stolen and he said:

"No, no it wasn't," and continued: "I just didn't know what to do. I couldn't afford it yet I loved my car. Dad kept telling me that I paid too much for it in the first place and then he started to get on my back about paying for it, no work and I also had problems paying for my sound system. You don't know my father, he gets really aggro."

"Dad said that he could fix everything up and that he would do this for me because he loves me."

When asked to explain, he said:

"Dad and my uncle Mick took the car to Anna Bay and dumped it."

The conversation continued and the appellant asked to be allowed to speak to his sister Dana who, as it happened, was employed by Mr Tarrant's company. Mr Tarrant brought her into the office and she asked the appellant what was going on. The appellant said:

"Dad and uncle Mick took my car to Anna Bay and dumped it. It wasn't stolen."

The appellant made further admissions to his sister. After she left the office Mr Nicholas re-entered and the appellant repeated his admissions. Mr Tarrant cautioned the appellant and in the presence of Mr Nicholas asked him a series of rather more formal questions and in answering them the appellant made further admissions. He also confirmed that when he reported the car stolen to the police he knew that he was making a false report and that when he advised FAI he knew that he was making a false claim. At the end of the conversation the appellant confirmed in answers to questions that he had been cautioned, that he had not been threatened, that no promise had been made to him to make him answer the questions and that he had not been induced or "conned" to give his answers. He was asked whether what he had said was the truth and he said that it was. He was asked whether he wanted to proceed with his claim on the insurance company and he said that he did not. Mr Tarrant asked the appellant's permission to tape record his questions and the appellant's answers. The appellant agreed. Mr Tarrant then asked him a number of questions, going over the ground that I have already set out in detail. The conversation was recorded as agreed.

On the same day Mr Tarrant, Mr Nicholas and the appellant went to the Newcastle offices of FAI. In the absence of the appellant Mr Tarrant played the tape to Mr Gilmour, an officer of FAI. The appellant was introduced to Mr Gilmour and Mr Tarrant asked him whether he understood that he could be charged with a criminal offence. The appellant nodded. He was asked whether he understood that his father and uncle could also be charged with a criminal offence and the appellant nodded. Mr Gilmour told the appellant that he had ruined his life and that he, Mr Gilmour, did not want to be responsible for any further problems that he might get into. He said that he would give him until Friday to pay out the bank or he would get in contact with the police. The conversation ended when the appellant told Mr Gilmour that he saw no problems in getting the money. He thanked Mr Gilmour for considering his career.

A statement made by the appellant was tendered on the voir dire. It also dealt with the conversation which took place between Mr Tarrant and the appellant in the absence of Mr Nicholas. Most of the detail can be omitted for present purposes, but a stage was reached when, according to the appellant, Mr Tarrant told him that he did not want him to end in gaol, that he was not a criminal but had just "wobbled". The appellant said that he did not follow Mr Tarrant, who thereupon left him alone for about fifteen minutes. When he returned he told him about his son, who was in gaol. The appellant indicated that he did not understand what Mr Tarrant was talking about, and Mr Tarrant said:

"I know your car wasn't stolen, Milan, I know that your father and uncle took care of it for you.

The appellant said that that was not true, that Mr Tarrant was lying. Mr Tarrant said that he had it in black and white. The appellant said that he would like to speak to his father about it and Mr Tarrant responded that he was not holding the appellant there, but that if he left he would be in gaol by the end of the week. A little later Mr Tarrant said:

"Milan, I have an anonymous witness who knows your father and uncle did a job on your car, and I don't want it to go any further than this. She phoned FAI and told them everything. I believe that she phoned your mother as well."

The appellant did not know whether Mr Tarrant had told him the truth and was afraid. Mr Tarrant made an excuse and left him alone for about thirty minutes. Then the appellant was told that Mr Tarrant was ready to speak to him again and the conversation resumed when he asked him whether he knew who Garry Gilmour was (he was or had been a cricketer of note). Mr Tarrant told the appellant that Mr Gilmour was the boss at FAI and that he had spoken to him, that he did not like criminals much and usually dealt with them "pretty heavily", but that he was a good type of guy and that he might help the appellant if asked. He concluded by saying that he did not know what Mr Gilmour would want to do, that he might help the appellant or that he might just charge his father straight away.

At that point the appellant, so afraid at what had been said to him, stopped caring any more and told a lying story. He told Mr Tarrant that he and two mates had taken the car to Anna Bay and dumped it and that his father had not been involved. Mr Tarrant then called in the appellant's sister and had a conversation with her from which it might be inferred that Mr Tarrant suspected that she also might have been involved in getting rid of the appellant's car. The appellant then agreed to withdraw the claim and signed a release. There were some questions on the form of release and Mr Tarrant told the appellant how to answer them. He complied. It was then that Mr Tarrant recorded on his tape recorder a series of questions which he asked and answers which the appellant gave. However, the conversation did not take place in the manner described by Mr Tarrant. Instead, he frequently stopped the tape and told the appellant that answers he had given were unacceptable, telling him what to say. The appellant complied. Essentially the answers recorded on the tape were Mr Tarrant's suggestions, not the appellant's voluntary answers.

The appellant gave evidence on the voir dire and swore that the matters set forth in his statement were true to the best of his recollection. He said that he did not understand the meaning of the form of release he had signed, because he had never read it.

The release was in the following form:

"FORM OF RELEASE
I, Milan Carl Adamcik , of 38 Silsoe Street, Mayfield, do hereby agree to discharge all claims whatsoever arising out of the theft of my motor vehicle, a 1988 Honda Prelude sedan, registration number : PKI.933, which was allegedly stolen from Mayfield R.S.L. Club, Hanbury Street, Mayfield between 5.30p.m. and 9.45p.m. on 16th June, 1991, AND in consideration of this alleged theft of my motor vehicle, I hereby remise, release and forever quit claim under motion vehicle policy number: 2408634720 held with F.A.I. Insurance Group, all actions, suits, claims and demands of every kind whatsoever from debt, damages, costs, charges and expenses which I now have and but fro the execution of these presents at any time hereafter might have or have had in respect of the alleged theft of my motor vehicle, registration number: PKI.933, or in any way related to the above.

As a result of my false and misleading claim, I am therefore prepared to reimburse F.A.I. Insurance Group the sum of Eight Hundred and Sixty Dollars and Nil Cents, ($860.00) being payment for costs incurred by them as a result of the investigation conducted by Claims Investigation & Assessment (Australia).

Was any threat made to you to make this release? No

Was any promise made to you to make this release? No

Were you induced in any way to make this release? No

Have you any complaints about the manner in which you were interviewed? No

Have you read this release and understood all it contains before signing same? Yes

SIGNED AT NEWCASTLE THIS 2ND DAY OF SEPTEMBER, 1991.

SIGNED (signed by appellant) ADDRESS 38 SILSOE ST MAYFIELD.

WITNESS (signed) (signed)

P. D. Tarrant W. S. Nicholas."

The appellant said that in answering the questions at the foot of the document he was told just to write in "no", or "yes", and complied without reading the questions.

Counsel for the appellant on the voir dire, who did not appear at the trial or in this appeal, told the trial judge that the tender of evidence of admissions made by the appellant to Mr Tarrant ought not to be admitted into evidence because they were not voluntarily made. That was because they were induced by false representations of fact. Later on counsel made clear that what was being asserted was a single false misrepresentation of fact, namely that the car was insured "way over the market value on an agreed value policy". Those words were contained in Mr Tarrant's statement, so there was no argument about whether they had been said. It was suggested to Mr Tarrant that he had no belief in that statement and no basis for any such belief. He replied that he had and named a well-known dealer's guide.

Other issues were raised on the voir dire as well, particularly the authenticity of the taped recording of the conversation which had taken place between Mr Tarrant and the appellant. The trial judge accepted that the tape had not recorded the conversation by means of a single uninterrupted run, as asserted by Mr Tarrant, but was otherwise satisfied that the conversation had taken place in the manner described by Mr Tarrant. Except in that minor respect, his Honour accepted Mr Tarrant as a truthful and reliable witness. He formed a poor opinion of the truthfulness of the appellant. His Honour found that the admissions and the execution of the form of release had been made voluntarily and with the necessary knowledge. It seems to me that his Honour was entitled to make those findings. The appellant has failed to make good his submissions. However, counsel attempted to support the first ground of appeal by raising points never taken before the trial judge. It was first asserted that the admissions made by the appellant had been induced by a different misrepresentation of fact, namely Mr Tarrant's assertion that the insurance company had received a telephone call from a woman, informing it that the appellant's car had been removed in a manner arranged by the appellant so that he could make an insurance claim. It was put that his Honour erred in not directing himself that it was his task to determine whether that representation were true. If his Honour had correctly approached his task, it was submitted, it would have been obvious that the representation as to the existence of an independent female witness, coming just before the appellant made his admissions, required analysis.

Mr Tarrant was extensively cross-examined by counsel for the appellant, but it was never put to him that the assertion he had made about the telephone call was false. In the circumstances it is hardly surprising that the matter was not dealt with in his Honour's judgment. Counsel for the appellant in this appeal was asked why, in those circumstances, his Honour should have regarded the representation as possibly false or have considered its effect on the appellant. Counsel was unable to provide any satisfactory answer and fell back on blaming counsel who appeared on the voir dire. There the matter was left.

There appears no reason to think that counsel was at fault in not raising this issue before his Honour. There is no evidence that he had instructions which would have required him to do so. To the contrary, Mr Tarrant told the jury in due course that it was the appellant's sister who had told him that she and the appellant's mother had received the telephone call. When the appellant's sister was later called by the Crown to give evidence, defence counsel never asked her about the telephone call.

I would not grant the appellant the leave he needs to raise this matter on appeal.

The next point taken under the first ground was that much of the evidence on the voir dire went to support the conclusion that the appellant was led to believe that if he co-operated with Mr Tarrant he would be able to persuade the insurance company not to take the matter to the police. As with the first submission, this is not a point that was taken on at trial. Apart from that difficulty, I have considerable doubts whether the evidence establishes that conclusion. However, for reasons which will appear, it is convenient to defer consideration of this matter until the second ground of appeal is dealt with.

The final submission under the first ground was that, even though the evidence of admissions was admissible, his Honour erred in his discretion in allowing it to go before the jury. The submissions were put shortly in writing and were not amplified orally. Reference was made to the fact that the appellant and Mr Tarrant were alone together during the important parts of the interrogation and that no caution was administered until significant admissions had been made. It was put that those circumstances would have led to an exclusion of the evidence if Mr Tarrant had been a police officer. In my opinion none of the matters pointed to suggest that the appellant's admissions were unreliable. Nothing about the circumstances of the interrogation seems to me to have required his Honour to exercise his discretion against the admission of the evidence.

The second ground of appeal complains that his Honour erred in not allowing the appellant to adduce evidence on the voir dire from certain witnesses. Counsel for the appellant had put to Mr Tarrant that he had had a standard technique of interrogating persons who had made insurance claims, designed to cause "a maximum number of claimants to drop their claims". His response had been that he handled individuals individually. He had been asked whether he had interviewed certain named persons. The defence had statements of four such persons, three of whom were available to give oral evidence. Counsel told his Honour that the evidence of the witnesses was "so starkly similar in many respects that they signify a system or bias on the part of this witness" (referring to Mr Tarrant) and that "conduct ... of a very similar kind ... tends to prove the bias ... in this case." Notwithstanding the reference to bias, it seems that counsel was intending to call similar fact evidence to show that Mr Tarrant always or almost always conducted his interviews in the same way, giving rise to an inference that he must have conducted his interview with the appellant in such a way. His Honour indicated that he would not admit the evidence, but asked to be supplied with legal authority supporting its admissibility. The matter was raised again on subsequent days and in all was referred to on four occasions during the voir dire. On none of the occasions were the statements of the proposed witnesses shown to his Honour. His Honour was never informed precisely what each witness would say or how that supported the appellant's version of what happened where it conflicted with Mr Tarrant's version.

Fortunately, this Court does not have to deal with the matter with as little information or assistance as was given to his Honour, because copies of the statements were tendered on appeal. I take it for present purposes that it is possible to prove what a man did on a particular occasion, there being no direct evidence of it, by proving that it was his common or invariable practice to do such a thing. Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849. It was submitted on appeal that the evidence of the appellant and Mr Tarrant differed in two respects and that the evidence of the four witnesses would have shown that the appellant's version was correct. The differences were as follows.

(a) The appellant's version was that he was told that if he co-operated with Mr Tarrant (which might include withdrawing his claim or signing the release or paying money) the police would not be informed, whereas Mr Tarrant's version was that in such circumstances the police might not be informed.

(b) The appellant asserted that such a representation was made before he made any admissions, whereas Mr Tarrant's evidence was that the subject of police involvement was not raised until after the admissions had been made, the release signed and the interview recorded.

The relevant part of the appellant's statement is that in which the appellant states that Mr Tarrant told him that he was not holding him, but that if he went he would be in gaol by the end of the week. It was after that that the subjects of Anna Bay and the anonymous telephone call were raised, leaving eventually to the admissions. Mr Tarrant's statement mentioned conversations about the possible avoidance of police involvement, but only when the party arrived at the FAI office, well after the admissions were made.

In order to gain any assistance from the evidence of the proposed witnesses, the appellant would have had to be able by reference to them to demonstrate that Mr Tarrant used the words the appellant attributed to him before the appellant made any admissions. The statements of the proposed witnesses must be considered with this in mind.

The statements are annexures A, B, C and D to the affidavit of Warwick Baker, the appellant's solicitor, sworn on 3 September 1996. According to Mr Baker three of those four persons were available to give evidence on the voir dire, though Mr Baker does not say which three. I will assume for the purposes of this appeal that the three most favourable to the appellant were available.

The first statement is of Michael Richardson, whose car was burnt and who made a claim against an insurance policy. A few weeks after November 1989 he was interviewed by an unidentified man whom I take for present purposes to have been Mr Tarrant. Mr Tarrant told Mr Richardson of certain evidence that he had, suggesting that the claim was a false one, and asked him whether he had had his car burnt as an easy way out. Mr Richardson denied it. Mr Tarrant then said that the witness to whom he had referred was prepared to give evidence about it in court. He went on to say, "I know it's your first offence. You won't go to gaol, you'll get off with a bond and a fine. I can fix it with the insurance company if you sign this release." Mr Richardson denied having done anything wrong. Mr Tarrant said, "You're going to gaol and you're going for a very long time. I'm going to get you charged with fraud and arson."

The next statement is of Mrs Soiland, whose car was stolen and damaged and who made a claim on her insurance policy. In February or March 1992 Mrs Soiland was interviewed by Mr Tarrant, who reminded her that she had misstated the name of the club from which she said the car had been stolen, pointed out that the abandoned car had been found close to her home and that she was in financial trouble. He went on, "All we want you to do is disclaim any claim you have made against the insurance company. We can help you with the insurance company, so don't worry about that, just sign this form." The form was a form of release which I shall assume was similar to one signed by the appellant. Mrs Soiland did not sign the release and made no admissions.

The next statement is of Steven Dwyer, whose car was stolen and found burnt out and who made a claim on his insurance policy. Late in 1989 he was interviewed by Mr Tarrant, who told him that it was his job to find out which people were trying to defraud insurance companies because they were in financial trouble. He said, "We don't want to involve the police. If there has been a fraud they can just come forward and withdraw their claim." Mr Dwyer then asked him whether he were accusing him of stealing his own car and Mr Tarrant said that he was. Mr Dwyer denied having done such a thing and threatened to sue Mr Tarrant for defamation. Mr Dwyer made no admissions.

The fourth statement is of Ms Sandra Jane Morgan, whose car was stolen and who claimed on her insurance policy. In January 1987 Mr Tarrant interviewed her and told her that his firm had received a telephone call to the effect that the theft had been orchestrated by Ms Morgan. He kept on repeating that statement and drew Ms Morgan's attention to an important omission from her statement to the insurance company. Mr Tarrant then said that he did not want to see a girl of Ms Morgan's age end up in court or gaol after her or anybody else's stupidity, as well as drag down her brother's good name and reputation as well. He asked her which it was going to be. Ms Morgan responded to the effect that she had not arranged for the car to be stolen and Mr Tarrant continued, "So in other words I've got to take the other track and you will wind up at the police station booked with public misbehaviour and attempt to file for it through the insurance company once I prove this all wrong" (sic). Ms Morgan still made no admissions and a little later Mr Tarrant said, "Look, the other way out of this is to sign a release form which cancels the claim and nothing is said and it's all over with." Ms Morgan, having then been interrogated for a substantial time said, "I give up." Mr Tarrant then said, "If you sign the release the police won't be involved." Ms Morgan signed the release.

According to the proposed evidence of Mr Richardson, Mr Tarrant told him that he would definitely be charged. Nothing in what Mr Tarrant is reported as having said deals with what would or might happen if the claim were withdrawn or a release signed. The proposed evidence cannot make it appear likely that the appellant's version of the disputed conversation is the correct one. According to Mrs Soiland, the only consequence of a withdrawal of her claim would be that Mr Tarrant would "help her" with the insurance company. No mention was made whether the police would or would not be told. Mrs Soiland's evidence would not support the appellant's version of his conversation with Mr Tarrant. The proposed evidence of Mr Dwyer, attributing to Mr Tarrant the words, "We don't want to involve the police ..." is consistent with both Mr Tarrant's version and the appellant's version. It would not therefore assist the appellant. The statement of Ms Morgan supports the appellant's version.

None of Mr Richardson, Mrs Soiland and Mr Dwyer made any admission or signed any release so their evidence would not be capable of bearing upon the second question, namely whether anything said about the involvement of the police was made before or after the relevant admission or withdrawal was made. Only the statement of Ms Morgan deals with that matter and it supports and appellant's version.

The question arises whether the evidence of a single witness is capable of giving rise to an inference that the appellant's version, not Mr Tarrant's was the correct one. In my opinion that question must be answered in the negative. Evidence of what a person did on a single occasion does not prove what that person's habit was or what that person regularly or invariably did. The evidence of the other three proposed witnesses demonstrates that what happened during the interview with Ms Morgan was not something that always or, perhaps, generally happened. The conversations dealt with in the proposed evidence of these witnesses took place over the period of early 1987 to February or March 1992. There was no evidence of how many people Mr Tarrant interviewed over that period of five and a half years, but it must have been considerable. In my opinion the proposed evidence was not capable of having the effects contended for and there was no proper basis for its admission.

The first and second grounds of appeal fail.

It is convenient to deal with the third and fourth grounds of appeal together. They complain that evidence of the appellant's admissions to Mr Tarrant, Mr Nicholas, the appellant's sister, Mr Gilmour and one, Mr Davis went to the jury and that the jury heard Mr Tarrant's tape recording of the appellant's admissions and saw a transcript of it. Mr Nicholson and Mr Tarrant gave evidence at the trial of the conversations to which I have referred in which the appellant made admissions to Mr Tarrant, Mr Nicholas, Mrs Ambler, Mr Gilmour and Mr Davies (who was present with Mr Gilmour). The form of release, Exhibit S, and the tape made by Mr Tarrant recording part of the conversation, Exhibit U, were tendered. The tape was played to the jury, who had in their possession copies of a transcript of the conversation recorded on it. No objection was taken to any of that evidence. The sole purpose of these grounds of appeal is to guard against the possibility that the evidence complained of, which was said to be inadmissible under the rules which preceded the Evidence Act, 1995, might have become admissible under that Act, which had come into force between the conclusion of the voir dire and the resumption of the trial before the jury. As will be apparent from what appears under the fifth ground of appeal, his Honour and counsel at the trial were all of the opinion that the Evidence Act 1995 had superseded the former rules of evidence.

For reasons which I shall explain I am of the view that the Evidence Act 1995 did not apply to this trial and that the rules applied by his Honour on the voir dire continued to apply to the admissibility of the evidence complained of. As I have said, no further objection was raised to the tender of the evidence at the trial and, for the reasons I have given under the first two grounds, the evidence was in my opinion properly admitted.

Ground 5 complains that the trial judge erred in not allowing the appellant to call as witnesses in his defence Mr Richardson, Mrs Soiland, Mr Dwyer and Ms Morgan. The factual matters raised are identical to those raised under ground 2 but the purpose of this ground is to reiterate the position that his Honour wrongly decided to exclude the evidence because of the provisions of the Evidence Act 1995. It is submitted that the evidence was admissible under the pre-Evidence Act rules and continued to be admissible under those rules during the trial.

After the conclusion of the evidence in chief of Mr Tarrant, counsel then appearing for the appellant indicated his intention to ask Mr Tarrant, and if permitted call evidence, about other interviews Mr Tarrant had carried out. His Honour asked what the relevance of the evidence was, and counsel told him that it was the credibility of Mr Tarrant. If it had applied, s 102 of the Evidence Act 1995 would have rendered such evidence inadmissible, but counsel drew his Honour's attention to s 106(a), which provided an exception for evidence tending to prove that a witness was biased or had a motive for being untruthful. Once again his Honour was misled as to the available basis of admissibility of the evidence. His Honour was reminded that he had already held the evidence inadmissible and it was put that the only question then to be answered was whether the Evidence Act had rendered the evidence admissible. His Honour held that it had not.

Counsel for the appellant and the Crown submitted on the hearing of the appeal, correctly in my opinion, that the Evidence Act had no application. Paragraph 2 of Schedule 2 of the Evidence (Consequential and Other Provisions) Act 1995 relevantly provides that a provision of the Evidence Act 1995 does not apply in relation to a proceeding the hearing of which began before the commencement of the provision. In my opinion the hearing of this proceeding began when his Honour commenced to consider the admissibility of evidence on the voir dire. The indictment was presented then - see District Court Rules Pt 53, r 11(1): see also Newell v The King [1936] HCA 50; (1936) 55 CLR 707; R v Nicolaidis (1994) 33 NSWLR 364. As I have already explained under ground 2 above, the evidence was admissible.

For these reasons the third, fourth and fifth grounds of appeal fail.

The final ground argued was ground 6, which contended that the trial judge erred in limiting the cross-examination of Mr Tarrant. It was submitted that in excluding evidence of what Mr Tarrant had said and done in other interviews, his Honour had effectively prevented defence counsel from testing the reliability and weight of the admissions of which Mr Tarrant had given evidence. There is no substance in these submissions. His Honour was correct, for reasons I have explained, in excluding cross-examination of Mr Tarrant about interviews he may have had with persons other than the appellant, but that did not otherwise restrict cross-examination. In my opinion this ground fails as well. I would dismiss the appeal.

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Polias v Ryall (No 2) [2015] NSWSC 1 (2 January 2015)

Last Updated: 8 January 2015










Supreme Court

New South Wales







Case Title:

Polias v Ryall (No 2)





Medium Neutral Citation:

[2015] NSWSC 1





Hearing Date(s):

22 December 2014





Decision Date:

02 January 2015





Before:

Rothman J





Decision:


(1)Orders (16) and (17) issued on 22 December 2014 in this matter are vacated;

(2)Subject to any earlier order issued from this Court rendering the plaintiff liable for the defendants' costs of any interlocutory aspect of these proceedings, the defendants shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed, on an indemnity basis. The liability for said costs shall be joint and several, but, as between each of the defendants, each other defendant shall be liable to reimburse: the first defendant for any amount paid by him over 36% of the costs as assessed or agreed; the second defendant for any amount paid by him over 39% of the costs as assessed or agreed; the third defendant for any amount paid by her over 15% of the costs as assessed or agreed; and the fourth defendant for any amount paid by him over 10% of the costs as assessed or agreed;

(3)Pursuant to section 101(4) and (5) of the Civil Procedure Act 2005, interest is to be paid on the amount payable under order (2) above at the rate prescribed by the Uniform Civil Procedure Rules 2005 from the date or dates on which the costs concerned were paid by the plaintiff until payment by the defendants of the amounts so payable. For said purpose, the plaintiff is to be taken to have paid the costs concerned on the date or dates of the payment or payments actually made by him for or on account of the costs of these proceedings, but only to the extent of the proportion of each such payment that the total amount of costs allowed on assessment under the said order bears to the total amount of costs which the plaintiff has paid or is liable to pay as between the practitioner and client in connection with these proceedings.





Catchwords:

DEFAMATION - Interest on costs - Rationality of alternate approaches - Ordinary approach that interest on costs paid should be awarded - Indemnity costs - Effect of s 40 of Defamation Act





Legislation Cited:

Defamation Act 2005
Uniform Civil Procedure Rules 2005





Cases Cited:

Grace v Grace (No 9) [2014] NSWSC 1239
Polias v Ryall [2014] NSWSC 1692





Category:

Costs





Parties:

Nicholas Polias (Plaintiff)
Tobin Ryall (First Defendant)
Andy Hun Wei Lee (Second Defendant)
Sandy Jan (Third Defendant)
Rhys Gould (Fourth Defendant)





Representation






- Counsel:

Counsel:
Kalantzis Lawyers (Plaintiff)
ILC Law (First and Fourth Defendant)
Banki Haddock Fiora (Second and Third Defendant)





- Solicitors:

Solicitors:
S. Chrysanthou/with B. Regener (Plaintiff)
M. K. Rollinson (First and Fourth Defendant)
B. Burke (Solicitor advocate) (Second and Third Defendant)





File Number(s):

2013/161335





Publication Restriction:

None









JUDGMENT

1.ROTHMAN J: Pursuant to a direction arising from the substantive judgment in this matter, the parties apply to the Court for orders giving effect to the said judgment, the terms of which orders give rise to a difference between the parties relating to costs and interest. This judgment deals with that remaining difference.

2.The substantive judgment (Polias v Ryall [2014] NSWSC 1692), delivered on 28 November 2014, granted judgment for the plaintiff against each of the defendants in relation to each of the defendants' publications and the defamatory imputations arising therefrom. The substantive reasons for judgment directed the plaintiff to provide Short Minutes of Order reflecting the reasons, from which the difference between the parties arises.

3.On 22 December 2014, having received a written outline from each of the parties, the Court granted orders in relation to those matters on which there was consent, being orders 1 to 15 of the proposed orders provided by the plaintiff. The Court reserved on proposed orders 16, 17, 18 and 19 of the draft final orders filed by the plaintiff. These reasons for judgment deal with those reserved proposed orders. These reasons for judgment should be read in the context of the consent orders issued on 22 December 2014 and the reasons for judgment in the substantive judgment delivered on 28 November 2014.


Costs

4.Two issues arise in relation to the costs of the proceedings, being whether costs should be assessed on an indemnity basis, or the extent to which they should be so assessed, and whether the liability for costs should be joint and several or proportionate to the damages awarded.

5.The plaintiff relies, for his claim for indemnity costs for the whole of the proceedings, on s 40 of the Defamation Act 2005, which relevantly provides:


"40 Costs in defamation proceedings


(1) In awarding costs in defamation proceedings, the court may have regard to:


(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), and


(b) any other matters that the court considers relevant.


(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):


(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff-order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or


(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant-order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.


(3) In this section:


settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made."

6.The plaintiff submits that each of the defendants unreasonably failed to make a settlement offer and each of the defendants unreasonably failed to agree to a settlement offer proposed by the plaintiff. It is necessary to set out or summarise some correspondence between the parties.

7.On 28 November 2012 or 6 March 2013, the plaintiff, through his solicitors, sent a letter to each of the defendants in relevantly identical terms being, in effect, a "concerns notice" purportedly issued under the Defamation Act. This correspondence "demanded", inter alia, an offer of compensation and was not the subject of response by any of the defendants.

8.On 30 January 2014, the plaintiff, through his solicitors, sent to each of the defendants a letter containing an offer to settle the proceedings. Again, the letter to each defendant is not relevantly different and purports to be a Calderbank offer. Once more, there was no relevant response to this correspondence.

9.On 5 February 2014, the plaintiff served a notice of offer of compromise on each defendant in accordance with the Uniform Civil Procedure Rules 2005. The terms of the offer of compromise had been served earlier by previously retained solicitors who had mistakenly filed the said offers of compromise. In earlier interlocutory proceedings, another judge of this Court directed that the said offers be removed from the file (which occurred) and the currently retained solicitors for the plaintiff, as a matter of abundant caution and lest the earlier offers be considered invalid as a consequence of the filing, served the offers again on 5 February 2014.

10.Each of the offers of compromise proposed a settlement with each defendant that was less than the damages awarded against such defendant. As a consequence, the provisions of UCPR r 42.14 apply.

11.As an alternative to his primary submission for indemnity costs under s 40 of the Defamation Act, the plaintiff seeks indemnity costs at least from 6 February 2014. Plainly, the offer of compromise of 5 February 2014 was, pursuant to the Defamation Act, a "settlement offer" giving rise to the operation of s 40 thereof. The earlier correspondence may also satisfy the definition, but it is unnecessary to determine that question.

12.Once the Court is satisfied that a defendant unreasonably failed to agree to a settlement offer proposed by the plaintiff, the Defamation Act provides that, in the ordinary circumstances, any order for costs to the plaintiff will be an order for costs of and incidental to the proceedings, assessed on an indemnity basis. The amounts, and any other condition, contained in the offers of compromise were more than reasonable.

13.In relation to the primary imputation that the plaintiff had stolen $2000 in Las Vegas, none of the defendants were prepared, in evidence, to allege that the plaintiff had a state of mind consistent with the money having been stolen. Each of the defendants imputed, by their publication, such theft. Only the first defendant was present in Las Vegas during the events in question. Each defendant must have known that he or she could not prove the truth of the allegation. In those circumstances, it was unreasonable of each defendant to refuse the offer of compromise of 5 February 2014.

14.As a consequence of the foregoing, I see no reason why the plaintiff's costs of the proceedings, to the extent payable by the defendants, should not be assessed on an indemnity basis. Such an order does not affect the continuing efficaciousness of any prior order that the plaintiff pay any or all of the defendants' costs for any aspect of the proceedings.

15.The other matters raised by the defendants in response to the claim for indemnity costs relate to the reasonableness of any charge and the possible necessity to repeat work due to the plaintiff's change of solicitors. These are matters for assessment and do not affect my view as to the appropriate order to issue.

16.The second aspect relating to costs is the degree to which each of the defendants will be liable for the costs of the plaintiff. The course of these proceedings was a little unusual. Ordinarily, defamation proceedings against multiple defendants relate to one publication and liability is joint and several. In the ordinary circumstance, if there were multiple publications, there would be multiple proceedings.

17.In the current proceedings, the plaintiff has sued four defendants for four or more separate publications. If the plaintiff were to have chosen the ordinary course, assuming, as I must, that the result of the proceedings would have been identical, each defendant would be liable for the plaintiff's costs in each respective proceeding. The evidence in each such proceeding would have been identical or substantially identical as the evidence in these proceedings.

18.The course chosen by the plaintiff has, in effect, saved the defendants, as a group, the costs of three sets of proceedings. There is no good reason why each of the defendants should not be liable, in full, jointly and severally with the other defendants for the plaintiff's costs of these proceedings.

19.The only differences that would be occasioned by making an order of the kind that the defendants seek is the extent to which such an order would resolve, as between the defendants, their respective liabilities and if, contrary to expectation, one of the defendants were unable to satisfy his or her liability for an appropriate proportion of the plaintiff's costs. No good reason exists for the plaintiff to receive other than the full reimbursement of his costs in accordance with the orders of the Court.

20.Nevertheless, the Court should, subject to the plaintiff receiving the cost to which he is entitled, obviate any disagreement as between the defendants and the Court will make orders determining the proportionate liability of the defendants as between themselves, but not in such a way as to affect the entitlement of the plaintiff. The proportion which each should pay (subject to the overriding entitlement of the plaintiff to receive his entire entitlement) will be in accordance with the proportion of damages, as suggested.


Interest

21.The orders made by consent on 22 December 2014 included orders for the payment of interest from the date of publication until the date of judgment. After judgment, interest is payable pursuant to s 101 of the Civil Procedure Act 2005 and the UCPR. The only issue between the parties in relation to interest is whether interest should be payable on costs. With the consent of the parties, pre-judgment interest has been awarded at 3%.

22.The relevant principles applicable to a claim for interest on costs were stated by Brereton J in Grace v Grace (No 9) [2014] NSWSC 1239. His Honour said:


"[57] In Drummond and Rosen, Macfarlan JA, with whom Tobias JA agreed, said that it was not necessary for there to be evidence of the date or dates on which the costs concerned were paid, if an order for interest under s 101(4) were to be made, and that in the usual case the court did not need to know when the costs were paid (at [3]):


'[3] The matter in relation to which I respectfully disagree with his Honour is as to the making of an order for payment of interest on costs. His Honour has quoted the terms of s 101(4) and (5) of the Civil Procedure Act 2005. In my view it is unnecessary for there to be evidence of the date or dates on which the costs concerned were paid for an order for the payment of interest to be made under subsection (4). Indeed, such evidence would often not be particularly useful. If the Court does not choose to order that interest be payable from a later date, interest will run, if an order is made under subsection (4), from the date or dates on which the costs concerned were paid. If the costs were paid promptly, interest will run from an earlier date than that from which it would run if there was delay in payment. That is an appropriate result as the purpose of an order for payment of interest is essentially compensatory. I do not see why in the usual case the Court needs to know when the costs were paid.'


[58] His Honour added (at [4]):

'In the absence of any countervailing discretionary factor (of which there appear to be none in the present case), it is appropriate that an order for interest on costs be made to compensate the party having the benefit of a costs order for being out of pocket in respect of relevant costs which it has paid [Lahoud v Lahoud [2006] NSWSC 126 at [82-3] per Campbell J].'


[59] The defendants submit, however, that there must be evidence that costs were in fact paid, and, at least in this case, when they were paid in what amount and by whom, as otherwise the court would impose a liability for interest without any evidentiary basis. The defendants invoke Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211 ; (2013) NSWLR 436, in particular:

'[36] Illawarra nevertheless recognises that the power to award interest on costs is discretionary and that some positive case must be made in support of the application. It says, in that regard, that Illawarra has paid out a very large sum since the commencement of the litigation in 2008 and that that money could otherwise have been put to profitable use. Reference is made to an affidavit of Illawarra's solicitor referring to sums paid by Illawarra to his firm. Illawarra further says that Walton has effectively had the benefit of not having paid that money.


[37] Walton submits that the question of interest on costs cannot be determined without an exhaustive consideration of the circumstances that caused the proceedings to be protracted by the serving of evidence on unsuccessful issues, futile amendments to pleadings, issues not pursued at trial and matters relevant to McDougall J's observation concerning "the evident animosity between the parties and the lengths to which each has gone to buttress its case".


[38] That submission must be accepted. A party who contends that there should be an order for interest on costs must do more than point to the fact that the proceedings were protracted and that it had to outlay moneys on its own costs over a long period. The reasons for the protracted nature of the proceedings are of obvious relevance. To take a hypothetical example, one can imagine a case in which one party deliberately seeks to prolong proceedings with an eye to some collateral benefit of its own for which it is quite happy to pay the price of being out of the money it progressively outlays for costs. That hypothetical case can be contrasted with another in which a party has made strenuous effort to expedite matters and to avoid all delay with a view to the earliest possible trial but has been frustrated in those efforts by actions of the other party. A middle course is where each party acts with reasonable diligence and dispatch but the nature of the proceedings and their subject matter is such as to prolong them. A court might well take different attitudes to applications for interest on costs in these hypothetical cases.


[39] This litigation was, of its nature, time-consuming and exacting. Building cases often descend into what, to the outside observer, seems to be tedious analysis of a vast myriad of minutiae. In the absence of some sufficiently clear explanation of the reasons why this litigation proceeded as it did, in a timing sense, there would be no sound basis for exercise of the discretion concerning interest on costs, even if it were now exercisable by this Court in relation to the costs in the court below.'


[60] In Illawarra Hotel, the court did not refer to Drummond and Rosen. The apparent conflict between Drummond and Rosen and Illawarra Hotel has been noted, but not resolved, in Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99, [43], [44]; DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (No 2) [2014] NSWCA 142, [5], [6]; and Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158, [404], where Gleeson JA said:


'[403] No issue was raised on appeal as to the principles applied by the primary judge at [49] Judgment No 3. The payment of interest is intended to be compensatory, on the basis that the person entitled to costs has been wrongly required to spend money on litigation to enforce established rights: Robb Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 as [44] per Basten JA (Campbell JA agreeing). Thus in the absence of any countervailing discretionary factor, it is appropriate that an order for interest on costs be made to compensate the party having the benefit of a costs order for being out of pocket in respect of relevant costs which it had paid. There is no requirement to establish that the circumstances of the case are out of the ordinary: Drummond and Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331 at [4] per Macfarlan JA (Tobias JA agreeing) citing Lahoud v Lahoud [2006] NSWCA 126 at [82]- [83] per Campbell J.


[404] In this case, there was evidence before the primary judge by way of affidavit from Mrs Vicki Lovick, the administration officer of the respondents, of the amounts paid, and the dates of payment of legal costs totalling $636,558.27 as at 21 June 2012 (Black 936M). Thus no issue arises on the present appeal as to whether a special order for interest on costs can and should be made in the absence of such evidence: Drummond and Rosen Pty Ltd v Easey (No 2) at [3] per Macfarlan JA (Tobias JA agreeing); contra Handley AJA at [49]; cf Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211; 84 NSWLR 436 at [36] per Meagher, Barrett and Ward JJA.'


[61] In Owners - Strata Plan No 61162 v Lipman [2014] NSWSC 622, McDougall J did not think it open to deal with the matter on the basis that there was no binding authority and concluded that he was bound by Illawarra Hotel, although his Honour observed that if the matter were to be decided on the basis articulated by Macfarlan JA in Drummond and Rosen (and, his Honour added, similar views had been expressed on numerous prior occasions), the particular case was one in which it would still have been appropriate for there to be some explanation of what appeared to be extraordinary delay (at [266]-[270]).


[62] Unlike McDougall J, I do not consider that I should regard myself as bound by the decision in Illawarra Hotel. First, the Court of Appeal's observations on this issue were obiter, the ratio of the decision being (at [33]-[34]) that interest on costs was not part of the appeal. Secondly, their persuasive force as obiter is diminished by the circumstance that they conflict with an earlier decision of the Court of Appeal which has been applied on many occasions, never expressly overruled, and not referred to in Illawarra Hotel. Thirdly, the Court of Appeal has had at least three opportunities to resolve the issue but has deliberately left it open. Fourthly, the observations of Gleeson JA in Doppstadt Australia Pty Ltd v Lovick (at [403]), which post-date the judgment of McDougall J, tend to support the approach of Macfarlan JA in Drummond and Rosen. Fifthly, as White J has observed, the Court of Appeal's observations in Illawarra Hotel were made in the context that no application for interest had been made to the primary judge [Wardy v Wardy, [10]].


[63] The view that evidence that costs have been paid, and/or when they were paid, is not a necessary precondition of an interest on costs order, is supported by a number of considerations. The first is the terms of s 101(5), which provides that if the court makes an order under s 101(4), then interest is payable at the prescribed rate from the date or dates on which the costs concerned were paid (unless the court specifies some other rate and/or some other date). This provides a default position, which renders it completely unnecessary to prove when the costs were paid, until it comes to working out the quantum of the interest. If an order is made under s 101(4), then absent some special order under s 101(5) the costs will attract interest only to the extent that they have been paid, and from when they were paid. A party seeking to have interest run from a later date might need to adduce evidence to show why that should be so.


[64] The second is the history, referred to above, which shows that the origin of s 101(5) was in the power to "otherwise order" so that the default rules about interest would not apply; coupled with the compensatory purpose of the power conferred by s 101(4). It is now clearly established that, while neither the incipitur nor the allocatur rule may do perfect justice in every case, the incipitur rule is to be preferred as the default position (while the power to "otherwise order" enables the court to respond to the particular requirements of justice in the individual case [Tarlinton; Hunt v R M Douglas; Fischer v David Syme; Minister v Carson]. The essential reason for this is one of fairness, because otherwise, the sum of money that represents the costs is "fructifying in the wrong pocket" [Newton v Grand Junction Railway Co [1846] EngR 1049; (1846) 16 M&W 139 at 141; Tarlinton, 7-8; Minister v Carson, 352G-353F, 359D-361C]. Evidence is not required to make good the proposition that the money is fructifying in the wrong pocket after the plaintiff has paid costs which it is later determined should be recoverable from the defendant. Nor is the force of the proposition reduced by the protraction of the proceedings, or the reasons for which they are protracted. There is no requirement to demonstrate special circumstances in order to obtain an interest on costs order [Gilfillan v Australian Securities and Investments Commission (No 2) [2013] NSWCA 143 ; (2013) 94 ACSR 543, 549 [33]; Lahoud v Lahoud; Simmons v Colly Cotton Marketing Pty Ltd, [14]]; and there is no need to explain why the proceedings have taken the course they have, at least unless and until some "countervailing discretionary consideration" is raised.


[65] The third is that, because of the terms of s 101(5), an interest on costs order has inbuilt safeguards. The default provisions of s 101(5), as well as the usual form of order modelled on Lahoud v Lahoud, reflects the compensatory nature of the power, and allows recovery of interest only to the extent that (1) the court has determined that costs should be paid; (2) an assessor has allowed those costs; and (3) for the period from when the costs were paid by the party entitled. In view of those provisions, a court does not need to know whether the costs have been paid, or when they were paid. Thus the defendants' submission, that without evidence the court would be imposing a liability with no evidentiary basis for it, is incorrect.


[66] For those reasons, in my view, conformably with what Macfarlan JA said in Drummond and Rosen, a party who obtains a costs order will ordinarily - in the absence of any countervailing discretionary factor - also obtain an order for interest on those costs, if it seeks one, and evidence of payment of the costs is not required; nor is evidence explaining the course of the proceedings [see also Lahoud v Lahoud, [82]-[83] (Campbell J); Hexiva Pty Ltd v Lederer (Costs) [2006] NSWSC 1259, [21]; Wood v Inglis [2010] NSWSC 749, [9]-[13]; Lucantonio v Kleinert, [25]].


Discretionary considerations


[67] The foregoing discussion about the supposed requirement for evidence largely also addresses the argument that an order for interest on costs should be refused on discretionary grounds. Interest on costs, like prejudgment interest, is compensatory, not punitive. It compensates the party entitled for being out of money for the time it was held out of that money, and deprives the party liable of the benefit of having held the funds when it ought not have done so: absent such an order, the sum of money in question fructifies in the wrong pocket. In the absence of countervailing factors, it is ordinarily appropriate that an order for interest on costs be made, so as to compensate the party entitled for being out of pocket in respect of the costs that party has paid [Drummond and Rosen, [4]; Gilfillan v ASIC, [33]; Simmons v Colly Cotton, [15]; Lucantonio v Kleinert, [25]; Wood v Inglis, [9]-[14]; Tomasetti v Brailey [2012] NSWCA 399 ; (2012) 275 FLR 248, [164]; Lahoud v Lahoud, [83]].


[68] While the power to make an interest on costs order is discretionary and interest may be declined if there are 'countervailing factors', as with prejudgment interest under s 100(1), the circumstances in which a claim for interest can be refused are rare. The analogous position with respect to pre-judgment interest on debt or damages under CPA, s 100(1) was explained by the Court of Appeal in Falkner v Bourke (1990) 19 NSWLR 574 (at 576B):


'Early decisions in this Court, both under the Supreme Court Act and the District Court Act in regard to the awarding of interest, referred to the discretionary aspect of the power granted by the statutes. However, as cases have accumulated it has become clear that the circumstances in which a claim for interest can be refused are rare. The general rule was recognised as long ago as 1983 in a decision of this Court, Homeowners Insurance Pty Ltd v Job (1983) 2 ANZ Ins Cas 60-535. It was recognised there by Glass JA (at 78,105-78,106) that interest is almost invariably to be allowed when claimed and the Court's decision in that case went upon that basis, that being another case where a District Court judge had refused an award of interest for a supposedly discretionary reason, which was not really available in relation to the exercise of the statutory power. Although sometimes a countervailing factor may be self evident (as in Owners - Strata Plan No 1162 v Lipman), ordinarily the party raising it will bear at least an evidentiary onus of raising and proving it.'


[69] In particular, delay - and responsibility for delay - is usually immaterial, because the money is still fructifying in the wrong pocket [Tomasetti v Brailey, [164]]. If a defendant could show that, during a period of delay responsibility for which could be sheeted home to the plaintiff, it was earning interest at a lower rate than the prescribed rate that it would be required to pay the plaintiff, that might well support the court making an 'otherwise order' by way of varying the rate of interest payable - but it would not support making no award of interest at all.


[70] The defendants submitted that as a matter of discretion interest should be refused because the protraction of the proceedings was attributable to the plaintiffs, in that they served evidence on issues on which they were unsuccessful, made amendments to pleadings to raise issues on which they failed, abandoned a number of issues at trial, and 'given the evident animosity between the parties, the lengths to which the plaintiff has gone to buttress his case'.


[71] There are three answers to this argument. The first is that allowance has already been made for the plaintiff's failure on a number of issues, and pursuit of issues on which he was unsuccessful, and any excess of zeal in the pursuit of his case, in the determination that the defendants should pay only 62.5% of his costs [Grace v Grace (No 4)]. The second is that the protraction of the proceedings had many causes - some associated with the plaintiff, some with the defendants, and some with the court - and was by no means exclusively the responsibility of the plaintiff. The third is that even if the protraction of the proceedings was substantially the responsibility of the plaintiff, that does not mean that the defendants should retain the benefit of the money fructifying in their pockets in the meantime. That is because interest does no more than reflect the time value of money, and that the party liable has held the money and derived the benefit of it while the party entitled has been out of pocket in the meantime. Whatever the extent of the plaintiff's responsibility for delay, the defendants enjoyed the benefit of the money of which the plaintiff was out of pocket in the interim. As explained above, the plaintiff's responsibility for the delay does not somehow make it just that the defendants should retain that benefit.


[72] As will usually be the case, the compensatory purpose of the power is sufficient to warrant making an interest on costs order, and there are no sufficient countervailing factors."

23.With respect, I adopt the analysis of Brereton J and his Honour's summary of the principles. Two situations may arise in any order for costs. First, pursuant to the Bar Rules and the Rules of the Law Society and the practice of the legal profession, unpaid fees will be subject to interest accruing at the prescribed Supreme Court rates. In that circumstance, an order by the Court to pay costs will include interest on those costs that remain unpaid, because such interest will be part of the costs billed to the client.

24.Secondly, a client, entitled to an order for costs, may have paid costs as and when a memorandum of fees or costs was rendered. In those circumstances, that client will not be entitled to interest on the costs, unless an order is made by the Court, even though the client will have been out of pocket (and lost interest) on the amounts involved.

25.Costs are compensatory. They are not punitive. In those circumstances, it is appropriate, as stated by Brereton J, that, in the ordinary course, an order for interest on costs paid should issue. Not to order interest on costs paid would, in ordinary circumstances, irrationally disadvantage the client who pays legal fees in a timely manner and, thereby, discourage such payment and, ultimately, indirectly add to legal costs. The calculation of the interest on costs should be at the rate prescribed by the UCPR and date from the payment of the fees until the costs order is satisfied.


Conclusion

26.For the foregoing reasons the Court will make further orders in addition to the orders made on 22 December 2014. The Court makes the following orders:


(1) Orders (16) and (17) issued on 22 December 2014 in this matter are vacated;


(2) Subject to any earlier order issued from this Court rendering the plaintiff liable for the defendants' costs of any interlocutory aspect of these proceedings, the defendants shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed, on an indemnity basis. The liability for said costs shall be joint and several, but, as between each of the defendants, each other defendant shall be liable to reimburse: the first defendant for any amount paid by him over 36% of the costs as assessed or agreed; the second defendant for any amount paid by him over 39% of the costs as assessed or agreed; the third defendant for any amount paid by her over 15% of the costs as assessed or agreed; and the fourth defendant for any amount paid by him over 10% of the costs as assessed or agreed;


(3) Pursuant to section 101(4) and (5) of the Civil Procedure Act 2005, interest is to be paid on the amount payable under order (2) above at the rate prescribed by the Uniform Civil Procedure Rules 2005 from the date or dates on which the costs concerned were paid by the plaintiff until payment by the defendants of the amounts so payable. For said purpose, the plaintiff is to be taken to have paid the costs concerned on the date or dates of the payment or payments actually made by him for or on account of the costs of these proceedings, but only to the extent of the proportion of each such payment that the total amount of costs allowed on assessment under the said order bears to the total amount of costs which the plaintiff has paid or is liable to pay as between the practitioner and client in connection with these proceedings.



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