FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (No 2) [2019] FCA 1626

ORDERS

THE COURT ORDERS THAT:

1.    Each party and Person 17 bear their own costs of the interlocutory application dated 9 October 2018.

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

REASONS FOR JUDGMENT

BESANKO J:

1    This is an application by the respondents and by a proposed witness for the costs with respect to interlocutory applications made by them in three defamation proceedings in this Court. The three defamation proceedings have so far travelled together. The applicant, against whom the order for costs is sought, opposes the application.

2    The background to the application for costs is that the respondents brought an interlocutory application in which they sought orders under s 37AF of the Federal Court of Australia Act 1976 (Cth). A number of orders were made without opposition, but orders with respect to one particular person, designated in each proceeding as Person 17, remained contentious. The application proceeded with respect to Person 17 and I heard submissions in favour of the orders from the respondents and from counsel for Person 17 who was given leave to intervene in support of the orders. The applicant made submissions in opposition to the orders. I found in favour of the respondents and Person 17 (Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36). I made orders preventing disclosure of information that identified, or tended to identify, Person 17. The order was made subject to certain exceptions. I also made orders preventing the disclosure of certain documents on the Court file and that order was also made subject to certain exceptions. The respondents and Person 17 applied for an order that they have their costs of the application. That application is the subject of these reasons.

3    The costs of the application will be fairly substantial because of the evidence collected and presented by the respondents. That evidence is identified and discussed in the substantive reasons on the application (at [6], [19]–[39]).

4    Subject to exceptions not presently material, this Court’s power to award costs is contained in s 43 of the Federal Court of Australia Act. Subsection 43(2) provides that the award of costs is in the discretion of the Court or judge and subsection 43(3) sets out particular examples of the Court’s powers.

5    The Rules of Court (Federal Court Rules 2011 (Cth)) deal with the costs of an interlocutory application or hearing where no order for costs is made. Rule 40.04 provides:

40.04 Costs on interlocutory application or hearing

If no order for costs is made on an interlocutory application or hearing, the costs of the application or hearing:

(a)    if an order is made in favour of any party―follow the event; or

(b)    if no order is made in favour of any party―are taken to be costs in the cause of the successful party to the proceeding.

6    Counsel for the respondents also appeared as counsel for Person 17 on the costs application. He submitted that as the successful parties, they should receive their costs on the basis that costs should follow the event, subject to one qualification. He accepted that the making of an order under s 37AF was not solely an adversarial contest and that, irrespective of the applicant’s attitude, they would have had to have satisfied the Court on appropriate material that an order should be made. However, he submitted the applicant in these cases went well beyond a position of disinterest or the approach that might be taken by an amicus curiae. The applicant gave notice of an intention to cross-examine Person 17 and the expert, and only abandoned that course shortly before the hearing. At the hearing, the applicant through his counsel made extensive submissions about alleged flaws in the expert’s report and, more generally, in opposition to the orders sought. In those circumstances, counsel for the respondents and Person 17 submitted that the applicant should pay 75% of the costs of the interlocutory applications. In the alternative, and picking up on the sentiment said to be expressed in r 40.04(b), counsel submitted that an order should be made that the respondents’ costs be the respondents’ costs in the cause and that Person 17’s costs should be treated in a similar way.

7    The applicant submitted that an order for costs should only be made if his arguments are characterised as manifestly untenable and that it is not possible to characterise his arguments in that way. He relied on a decision of the Full Court of the Supreme Court of South Australia in Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119; (2014) 121 SASR 87 at [51]. With respect, I do not think that case formulates a rule of general application to be applied in all cases involving suppression orders, but rather is limited to the particular statutory context in which the issue fell to be considered.

8    It seems to me that the starting point in the analysis is that the respondents and Person 17 needed to satisfy the Court that the order sought under s 37AF should be made, irrespective of the attitude of the applicant. That required evidence and, as the case was far from clear-cut, the making of submissions. Some submissions from an opposing party in the substantive proceeding in the role of friend of the Court on the construction issue discussed in my substantive reasons at [16] would have been justified without the penalty of a costs order. It is true that the applicant did not restrict himself to such a role and argued the matter with considerable vigour. However, the hearing was completed in under a day and I do not consider that such additional time as resulted from the applicant’s opposition is sufficiently substantial to warrant a departure from the otherwise appropriate order which is that each party and Person 17 bear their own costs. I will so order in each proceeding.

Associate:    

Dated:    1 October 2019

SCHEDULE OF PARTIES