FEDERAL COURT OF AUSTRALIA

Clarke v Nationwide News Pty Ltd trading as The Sunday Times (No 2) [2012] FCA 990

THE COURT DECLARES AND ORDERS THAT:

1.    The Court declares that the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) by publishing comments offensive to the applicant by reason of the aboriginal race of the applicant which were not published reasonably or in objective good faith being comments 108 of 114, 66 of 114, 29 of 114 and 96 of 179 referred to in the judgment in this proceeding delivered 27 March 2012.

2.    The Court orders the respondent forthwith to remove the contravening publications from its perthnow.com.au website and any other sites maintained by it.

3.    The Court orders that the respondent pay damages by way of compensation to the applicant for the offence, insult and humiliation she has suffered in respect of the contravening acts in the sum of $15,624 (inclusive of prejudgment interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth)).

4.    The respondent pay the applicant’s costs of the proceeding to be taxed, if not agreed, but not including the two amendments made to the statement of claim prior to the hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Costs issue

1    On 27 March 2012 I handed down judgment in this matter and asked to hear from the parties on 4 April 2012 as to the final terms of the orders and on the question of pre-judgment interest and costs. The parties were unable to reach agreement as to costs in the interim so on that day I made orders which included costs orders. I informed the parties that I would subsequently publish short reasons for these orders, which I now do.

pre-judgment interest

2    On the question of pre-judgment interest the parties reached agreement on the level of pre-judgment interest being 8.63% pa over 3.5 years on $12,000 which equated to $3,624.60. Consequentially, I ordered that the respondent pay damages by way of compensation for the offence, insult and humiliation suffered in the sum of $15,624 inclusive of pre-judgment interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

Applicant’s submissions

3    Senior Counsel handed up a brief set of written submissions on 4 April 2012 summarising the applicant’s position as to costs. The applicant said the Federal Court has jurisdiction to award costs pursuant to s 43 of the FCA Act and such discretion is an “unfettered broad and ample power” not to be read down otherwise than by judicial principle conformable with its amplitude: DSE (Holdings) Pty Limited v InterTAN Inc [2004] FCA 1251; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1979] FCA 143; (1979) 28 ALR 201.

4    The applicant relied on the principle that, in the absence of special circumstances, costs follow the event: Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at 48,136; Ritter v Godfrey [1920] 2 KB 47.

5    The applicant stated that success in the “event” may be attained even though success is not attained in every aspect of the case: New South Wales Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1989] FCA 124; (1989) 86 ALR 549; Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496. It was argued that the present case comprised a single application seeking a declaration that the respondent published words comprising unlawful discrimination and damages arising out of that conduct. The claim was particularised in paragraphs 5, 8 and 9 of the re-amended statement of claim filed 22 November 2010, and the applicant said that the particularisation of the claim did not make it multiple claims. Senior Counsel said that the applicant alleged racial vilification which was merely particularised and which supported the single cause of action.

6    The applicant submitted that her case was argued by focusing on the particular comments which could not survive the public interest defences in s 18D of the Racial Discrimination Act 1975 (Cth) (the Act) and therefore, in the reasons for judgment, the Court focused on those comments in analysing whether the claim had been made out and whether the exemptions provided for in the Act applied. The Court concluded that the respondent had contravened the Act and ordered remedies which the applicant sought in the form of a single declaration, a single order for removal of comments and a single sum of damages.

7    In summary, the applicant said that she was successful in the “event” or claim being made in the statement of claim, there was one cause of action and she is entitled to an order that the respondent pay the whole of the applicant’s costs.

Respondent’s submissions

8    Counsel for the respondent rightly noted that there is authority for apportionment of costs, including the intellectual property cases Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 and Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 (Universal Music). In Universal Music, Tamberlin J awarded the applicants 80 per cent of their costs of the proceedings because the applicants succeeded on some claims but were unsuccessful on others. Counsel also mentioned parallels with defamation cases in relation to references to imputations and similar public interest defences.

9    The respondent submitted that a mathematical-type calculation should be applied in that only four in a series of comments was found to be offensive to the applicant, which should be translated into an appropriate costs order. It was argued that a large amount of time and effort was spent endeavouring to meet the applicant’s case which included responding to amendments to the pleadings, which added further comments and imputations, as well as further affidavit evidence which referred to more comments. The respondent argued that a costs order should reflect the preparatory work that had to be undertaken in respect of responding to each and every comment, like comment and imputation. It said that it was only in the very late stage of the proceeding, and before the trial, that the applicant stated that the case was not being advanced on the imputations and in the end only identified a limited number of comments. The respondent said that every time the applicant added a comment there needed to be recourse to the imputation that was being relied upon, the article it was sourced from and then thought applied to the response.

Consideration

10    There are cases where proportional costs orders are made or orders are made benefitting the respective parties in respect of particular matters each has won or lost. This has occurred, for example in areas such as intellectual property disputation. Usually Courts are generally inclined to make a more general costs order.

11    I do not accept that because some of the comments complained about did not succeed, a mathematical calculation to the award of costs should be taken. I acknowledged the respondent’s argument in relation to the level of its preparation in responding to the allegations and I accept that the case was narrowed when it came to trial. I speculate that the imputations that were pleaded were probably abandoned in favour of a more direct, ordinary-meaning approach to the words complained of. In the end the applicant simply pointed to imputations as possible meanings that could be drawn. This meant that some refined arguments did not need to be addressed. However, in my view, there was no major deviation from the essence of the case that was put.

12    The respondent submitted that a rough percentage deduction should be applied. I did not think that such an order is the appropriate way in which to deal with some wasted work in responding to the ultimately narrower case which was put. I was initially open to the approach that, at the very most, a small percentage reduction of the applicant’s taxed costs might be ordered, given the abandonment of some of the pleaded case at the hearing but in the end did not consider that a reliable way of measuring the wasted work.

13    Senior Counsel for the applicant suggested another alternative being an order which might have been made in the interlocutory stages where the respondent could have any costs thrown away as a result of the amendments made. I was not attracted to that course as the respondent should have applied for an order in those terms at the time.

14    When considering the question of costs it is important to return to the facts of the case. There are some cases that lend themselves to a discrete analysis of points won and lost or a broader apportionment of costs. And there are other cases, like the present, where the points really are all in the “melting pot” and while the successful party may lose some and win others, the reality is that it was the entirety of the matter that was in dispute. In a case such as this, if a party makes out the discrimination alleged in respect of a number of important matters, it is difficult to unbundle the points won from any of those which did not succeed. In the result, I consider the applicant should have its costs for this reason, but not for the amendments made to the pleadings raising points which were not pursued.

Orders

15    The Court declares and orders:

1.    The Court declares that the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) by publishing comments offensive to the applicant by reason of the aboriginal race of the applicant which were not published reasonably or in objective good faith being comments 108 of 114, 66 of 114, 29 of 114 and 96 of 179 referred to in the judgment in this proceeding delivered 27 March 2012.

2.    The Court orders the respondent forthwith to remove the contravening publications from its perthnow.com.au website and any other sites maintained by it.

3.    The Court orders that the respondent pay damages by way of compensation to the applicant for the offence, insult and humiliation she has suffered in respect of the contravening acts in the sum of $15,624 (inclusive of prejudgment interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth)).

4.    The respondent pay the applicant’s costs of the proceeding to be taxed, if not agreed, but not including the two amendments made to the statement of claim prior to the hearing.

Associate:

Dated:    7 September 2012