Gayle v Fairfax Media Publications Pty Ltd; Gayle v The Age Company Pty Ltd; Gayle v The Federal Capital Press of Australia Pty Ltd (No 3)

HER HONOUR: Three actions for defamation were brought by the Jamaican cricketer, Mr Chris Gayle, arising from the publication of a series of articles accusing him of exposing his genitals to a woman in a change room in the period leading up to the 2015 World Cup. The actions were tried with a jury. The jury rejected the defendants’ defences. I assessed damages in the amount of $300,000 plus interest. Judgment is accordingly to be entered for the plaintiff in the amount of $326,112.

The parties are agreed, in the circumstances, that the defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis up to and including 6 July 2017 and on an indemnity basis from 7 July 2017. The basis for that agreement is the fact that the plaintiff made an offer of compromise to each defendant. The defendants accept, in light of the damages assessed by the Court, that an order in those terms would follow inevitably from the failure to accept those offers.

Two issues remain in dispute between the parties. One is whether there should be released to the plaintiff an amount of $350,000 paid by him as security for the defendants’ costs of the proceedings. The other is whether there should be a stay of the judgment pending the determination of an appeal that has been foreshadowed by the defendants.

As to the question of security for costs, it was submitted on behalf of the plaintiff that the proper approach is that, where a plaintiff succeeds in an action, and is entitled to costs, any security for costs should be paid out or released immediately, notwithstanding any appeal.

Mr Richardson, who argued these matters for the plaintiff, relied on two decisions to support that proposition. The first was the decision of Hamilton J in Lym International Pty Limited v Chen [2009] NSWSC 167 at [18]-[20]. The second was the more recent decision of Davies J in Texxcon Pty Limited v Austexx Corporation Pty Limited (2013) 276 FLR 401; [2013] VSC 343 at [26]- [28].

Those authorities provide ample support for the proposition contended for by Mr Richardson. In Texxcon, Davies J noted that the defendants challenged the correctness of the decisions cited to support the proposition in that case. His Honour was not persuaded that he should not follow those decisions saying that, on the law as it stands at present, the plaintiff in that case was entitled to have the guarantees in question returned.

In opposing the release of the security, Ms Barnett submitted that the question of liability for costs is inextricably linked with the matters to be raised on appeal. In particular, it is foreshadowed that the defendants will appeal on grounds including a ground that I erred in not discharging the jury on the defendants’ application after the conclusion of closing address by counsel for the plaintiff, Mr McClintock SC.

Ms Barnett submitted that, if that ground of appeal were to succeed, it may follow that the Court of Appeal would rule that, in lieu of the orders made by me refusing the discharge application, the jury ought to have been discharged and that the plaintiff ought to have been ordered to pay the defendants’ costs of the aborted trial. On that basis, it was submitted that, in order to protect the cost position of the defendants, the security should be held.

On the strength of the authorities relied upon by Mr Richardson to which I have referred I am persuaded that, the plaintiff having won, the appropriate course is to release the security for costs. As it was put in the decision of Huon Shipping and Logging Co Ltd v South British Insurance Co Ltd (1923) 23 VLR 216, referred to by Davies J in Texxcon at [27], the plaintiff having secured judgment in his favour has complied with the terms of the order for security and his obligation under that order should now be discharged.

The second application was for a stay of the judgment. As noted in submissions provided by Mr Richardson on behalf of the plaintiff, the power to order a stay is contained in r 51.44 of the Uniform Civil Procedure Rules 2005 (NSW) and there is also a general power in s 135(2)(c) of the Civil Procedure Act 2005 (NSW).

Mr Richardson acknowledged that it is not necessary for the grant of a stay for the party seeking a stay to establish special or exceptional circumstances. However, that party must establish an appropriate case or reason for a stay. Whether or not to grant a stay is ultimately a matter within the Court's discretion although the discretion must, as always, be exercised judicially having regard to all relevant circumstances.

The critical task in the present case is to make an assessment as to whether the appellant has an arguable case. Mr Richardson acknowledged that it is not appropriate for the judge hearing the stay application to speculate about the strengths or otherwise of the appeal once it is accepted that it is arguable.

I am constrained in that assessment in two respects. First, the application for a stay was not supported by any indication as to the likely grounds of appeal, save as to the indication that my refusal to discharge the jury would be one of the grounds.

Secondly, any application for a stay, when made to the judge at first instance, requires the judge to engage in the uncomfortable task of determining the likelihood of error being found in a decision which, of necessity, that judge regards to be correct.

I should acknowledge that the alleged incorrectness of my decision was expressed forcefully, both in Court and out of the Court, at the time of the hearing and I would, of course, have to acknowledge my own fallibility. That said, I am not persuaded that the decision I made was wrong, although I would have to accept the possibility that it is arguably so.

In those circumstances, it seems to me that it is appropriate to balance the competing interests of the parties in the manner suggested by Mr Richardson on behalf of the plaintiff. He noted that the position contended for by the defendants in seeking both to retain the security for costs and to have a stay of the whole of the judgment would see the plaintiff out of pocket to the tune of $650,000. I have already indicated my reasons for determining that the security for costs should be released and, in accordance with the authorities to which I have referred, I regard that as legally irrelevant to the application for a stay.

As to the stay, I am inclined to take the approach contended by the plaintiff, who indicated that he would not oppose a stay of half of the verdict. That is the order I propose to make. I direct the parties to bring in short minutes of order reflecting these reasons.

Orders entered on 12 December 2018: