FEDERAL COURT OF AUSTRALIA

Tate v Australian Broadcasting Corporation (No 2) [2019] FCA 1059

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 90% of the first respondent’s ordinary costs after 26 November 2018 of preparing for the 13 December 2018 hearing, the hearing itself and the written submissions following that hearing.

2.    The parties otherwise pay their own costs of and incidental to:

(a)    the applicant’s interlocutory application filed 21 August 2018;

(b)    the first respondent’s interlocutory application filed 30 August 2018;

(c)    the applicant’s amended interlocutory application filed 17 October 2018; and

(d)    the first respondent’s amended interlocutory application filed 26 November 2018.

3.    The parties pay their own costs of the costs adjudication.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an adjudication of competing arguments as to costs in relation to a pleading dispute which resulted in an interlocutory hearing on 13 December 2018, further written submissions up to 1 February 2019 and judgment on 3 May 2019: Tate v Australian Broadcasting Corporation [2019] FCA 610. The applicant is Mr Thomas Tate, and the first respondent is the Australian Broadcasting Corporation (ABC). As was observed in the judgment at [5]:

The original statement of claim, and the ABC’s defence, have been through several iterations without the need for adjudication. The correspondence and submissions before the Court reveal a significant measure of compromise, adjustment and agreement between the parties. There remains for adjudication a focused but substantial dispute as to confined aspects of the final proposed version of Mr Tate’s statement of claim and the ABC’s final defence.

2    Mr Tate seeks to have each party pay their own costs, pointing to the negotiations leading up to the filing of amended interlocutory applications on both sides and the adjudication being on a much narrower basis than was originally contemplated following the compromises adverted to above, and supported by a chronology annexed to his submissions. In substance he characterises the overall outcome as being evenly divided including as to the matters ultimately adjudicated upon. Unsurprisingly, the ABC puts the focus on the judgment whereby it had considerably greater success on the final areas of dispute, and seeks to put the prior negotiations to one side.

3    In the end, the arguments each way are only correct when viewed from the perspective of the different focus brought to bear. The results of the to and fro over the months leading up to the 13 December 2018 hearing were sufficiently evenly divided, or at least not obviously otherwise of that character. It follows that the costs of the original interlocutory application should be met by each side paying their own costs. The same outcome should apply up to the immediate aftermath of the last of the two amended interlocutory applications filed on 26 November 2018, including written submissions up to and including that date. However, what was left for adjudication undoubtedly was mostly determined in the ABC’s favour, with Mr Tate succeeding only as to a further amendment of his first imputation. The ABC should therefore have the applicant pay 90% of its ordinary costs after 26 November 2018 of preparing for the 13 December 2018 hearing, of the hearing itself and of the written submissions afterwards.

4    As each party has had a reasonable measure of success and failure on their respective arguments, each party should pay their own costs of this costs adjudication.

Associate:

Dated:    9 July 2019