Federal Court of Australia

Greenwich v Latham (No 3) [2025] FCA 312

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant’s costs of the proceeding, including reserved costs, on a party-party basis, to be taxed in the absence of agreement.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J

Introduction

1    These reasons deal with the last remaining issue (namely, costs) following my judgment in Greenwich v Latham [2024] FCA 1050 (the primary judgment).

2    The proceeding was commenced by Mr Greenwich, the member for Sydney in the New South Wales (NSW) Legislative Assembly, against Mr Mark Latham, an independent member of the NSW Legislative Council, for defamation arising out of two publications respectively referred to as the “primary tweet” and the “DT quotes”.

3    At trial, Mr Greenwich contended that the primary tweet and the DT quotes each conveyed two defamatory imputations. He claimed damages for non-economic loss and aggravated damages, as well as injunctive relief.

4    Two imputations were pleaded in relation to the primary tweet: (i) whether, by its natural and ordinary meaning, the tweet meant and was understood to mean that Mr Greenwich “engages in disgusting sexual activities”; and (ii) whether the tweet meant that Mr Greenwich “is not a fit and proper person to be a member of the NSW Parliament because he engages in disgusting sexual activities”.

5    I found that imputation (i) was conveyed.

6    I found that imputation (ii) was not conveyed.

7    The issues at trial in relation to the DT quotes were whether by their natural and ordinary meaning they meant, and were understood to mean, that Mr Greenwich: (i) “is a disgusting human being who goes into schools to groom children to become homosexual”; and (ii) “is not a fit and proper person to be a member of the NSW Parliament because he goes into schools to groom children to become homosexual”.

8    I found that neither imputation relating to the DT quotes was conveyed.

9    I found that the first pleaded imputation relating to the primary tweet was defamatory of Mr Greenwich.

10    I also found that Mr Greenwich had established that the publication of the primary tweet had caused, or was likely to cause, serious harm to his reputation.

11    Mr Latham relied on two defences in relation to the publication of the primary tweet, namely honest opinion and common law qualified privilege (reply to attack). I found that neither defence was made out.

12    I concluded that the appropriate award of damages for non-economic loss was $100,000. I also awarded aggravated damages in the sum of $40,000.

13    I subsequently heard an application by Mr Greenwich for injunctive relief, which I dismissed. See Greenwich v Latham (No 2) [2025] FCA 131.

14    I heard the costs application on 27 March 2025. The parties filed written submissions (including one in reply by Mr Greenwich), but the oral submissions were more helpful.

15    For the reasons that follow, I will order that Mr Latham pay Mr Greenwich’s costs of the proceeding on a party-party basis.

Should there be an apportionment of costs?

16    At the hearing, the parties dealt with the question of apportionment first, so I will do the same.

17    The parties were content for me to proceed on the basis that I need not consider the question whether s 40 of the Defamation Act 2005 (NSW) (Defamation Act) (dealing with costs in defamation proceedings) is picked up by s 79 of the Judiciary Act 1903 (Cth) because, in the circumstances of this case, it was agreed that the application of s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) dealing with costs would produce no different result. I thus proceed on the basis that the principles contained in s 43 of the Federal Court Act govern this application. This practical approach has been adopted before. In Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432 at [6] and Palmer v McGowan (No 6) [2022] FCA 927; (2022) 405 ALR 462 at 468 [41], for example, Lee J proceeded on the basis that the exercise of his discretion on the question of costs would have been the same, irrespective of which provision was applied. (See also Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139 at 147 [38]–[39], where Bromwich J, having heard full argument on the point, expressed the view that there is no inconsistency between s 40 of the Defamation Act and s 43(2) of the Federal Court Act due to the “wide residual discretion being retained … by the concept of the interests of justice embedded in s 40(2)” of the Defamation Act.)

18    The parties argued the question of costs by reference to the summary of applicable principles in defamation cases of this type (that is, where both parties in some sense or another have each enjoyed some success) contained in the judgment of White J in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 (Hockey (No 2)).

19    In that case, Mr Hockey alleged that each of the Sydney Morning Herald, The Age and The Canberra Times had defamed him by articles and other material. His principal claims concerned articles, written by two Fairfax journalists, which were published in both print and electronic formats.

20    In his principal judgment (namely, Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33), his Honour found that each of Mr Hockey’s claims in respect of those articles failed but upheld Mr Hockey’s claims in respect of three matters only, being a “poster” by which the Sydney Morning Herald had promoted a single print edition and two tweets published by The Age. Mr Hockey’s claim against The Canberra Times failed.

21    The costs principles relevant here and relied on by the parties from White J’s judgment may be summed up as follows:

(1)    section 43 vests a wide discretion in the Court with respect to costs, but the discretion must be exercised judicially (Hockey (No 2) at 134 [37]);

(2)    ordinarily, costs follow the event and a successful litigant receives their costs in the absence of special circumstances justifying some other order (Hockey (No 2) at 134 [37], quoting Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511; (1986) ATPR 40-748 at 48,136 (Toohey J));

(3)    nowadays, however, courts are more ready to apportion the costs awarded to a party who succeeds in only some of the claims they bring (Hockey (No 2) at 143 [88]);

(4)    where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that they bear the expense of litigating that portion upon which they failed (Hockey (No 2) at 134 [37], quoting Hughes at 48,136 (Toohey J)); and

(5)    an apportionment of costs may be appropriate where the issues on which the successful plaintiff failed were “clearly dominant or separable” (Hockey (No 2) at 142 [87]).

22    Mr Reynolds SC appeared with Ms Rubagotti for Mr Latham. The gist of their submission was this (see transcript at page 6):

But we come back fundamentally to the fact there are two different cases, and we submit, an order that each party pay its own costs would be fair in all of the circumstances. That involves – Mr Latham would suggest – some generosity on his part. Again, there may be some argument about that, but the point we would make is Mr Greenwich had no success at all in the [DT quotes] matter, and … Mr Latham had a measure of success in the primary tweet matter.

23    He also pointed to the fact that Mr Greenwich had been unsuccessful in his application for injunctive relief.

24    Because Mr Latham was successful on what Mr Reynolds said was a preponderance of the issues (that is, the second pleaded imputation with respect to the primary tweet and the whole of the claim in respect of the DT quotes), it was submitted that Mr Latham should only be ordered to pay one quarter of Mr Greenwich’s costs on a party-party basis.

25    Dr Collins AM KC, who appeared with Ms Jeliba for Mr Greenwich, submitted that Mr Greenwich should be awarded the whole of his costs of the proceeding, because he was successful in his claim and there is no reason that costs should not follow the event.

26    Dr Collins submitted that Mr Latham’s submission on costs was misconceived, and that it was wrong to rely on a numerical comparison of the issues. Dr Collins submitted that “[t]he way one looks at it is” as follows (see transcript at page 17):

[W]hat costs were expended by the parties in preparing the matter for trial, what resources of the court are expended in the articulation of the case at trial, and then your Honour exercises the broad judicial discretion in [respect of] costs. Now, the simple fact is Mr Greenwich won this case. He has been vindicated in bringing this proceeding. He has been awarded substantial damages. Mr Latham has been found to have engaged in seriously defamatory conduct which had serious consequences for Mr Greenwich, and conduct that your Honour found was so improper, so unjustifiable and so lacking in bona fides, that it sounded in aggravated damages.

27    Dr Collins further submitted that had Mr Greenwich sued only in respect of the primary tweet the case would have been run in exactly the same way, and no costs of any consequence would have been saved, including because:

(1)    the affidavit evidence relied on would have been precisely the same, because it necessarily went to matters of background, context, damages and matters as to Mr Greenwich’s extant reputation as a politician and member of the community;

(2)    all the same witnesses would have been called (although only Mr Greenwich was required for cross-examination);

(3)    the DT quotes case was not severable from the primary tweet case, because there was an unbroken chain of causation between the primary tweet, the torrent of abuse which was unleashed and Mr Latham’s “doubling down”, including by him making the DT quotes;

(4)    the second pleaded imputation in respect of the primary tweet involved only a (brief) legal argument in respect of which no evidence was admissible apart from the publication itself; and

(5)    all the evidence adduced about serious harm would still have been necessary.

28    For those reasons, Dr Collins submitted that “when one looks at it through that prism, one can see that Mr Latham overwhelmingly failed in this case. He’s not the three-quarters winner of the case and Mr Greenwich was the overwhelming winner. Our submission is [that] no time, apart from a bit of argument in relation to meaning … was wasted. Certainly, no time was wasted in the adducing of evidence at trial. It all had to be adduced anyway”. See transcript at page 21.

29    In my view, the submissions advanced by Dr Collins are irresistible, and they must be accepted. It is, in my view, appropriate that Mr Greenwich should recover his costs of the proceeding.

30    It is true that Mr Greenwich was unsuccessful in his application for injunctive relief, but as much, if not more, time, expense and delay has been brought about by Mr Latham’s insistence that Mr Greenwich put on sworn evidence about his sources of funding for the proceeding (about which I need say nothing), so the two things cancel each other out.

31    The question remains: should Mr Greenwich recover his costs on an indemnity basis?

Should costs be paid on an indemnity basis?

32    Dr Collins submitted that Mr Greenwich’s costs should be paid on an indemnity basis, principally because Mr Latham unreasonably rejected an offer to settle the case made by Mr Greenwich’s solicitors in a concerns notice dated 19 April 2023 (Concerns Notice).

33    The Concerns Notice was relevantly in these terms:

1    We act for Mr Alex Greenwich MP. This is a concerns notice within the meaning of s 12A of the Defamation Act 2005 (NSW) (the Act), in respect of matters you have published on Twitter and statements you have made to the media about Mr Greenwich. They have caused, and continue to cause, Mr Greenwich serious harm.

…

The Publications

6    On 30 March 2023, you tweeted homophobic and defamatory remarks on your Twitter account, @realmarklatham (the Primary Tweet). The Primary Tweet is reproduced in Annexure A to this letter.

7    The Primary Tweet was immediately accessible to your 66,700 followers. It was seen by at least 6, 171 people on Twitter before you deleted it many hours after it was first posted.

8    The Primary Tweet was grossly defamatory of Mr Greenwich. It was calculated to, and did, expose him to hatred, contempt and ridicule.

9    The Primary Tweet imputed:

(a)    as a matter of its natural ordinary meaning, that Mr Greenwich engages in disgusting sexual activities;

(b)    to readers of the Primary Tweet who know that Mr Greenwich is a member of the NSW Parliament – all or the vast majority – by way of true innuendo, that Mr Greenwich is not a fit proper person to be a member of the NSW Parliament because he engages in disgusting sexual activities.

10    You appear to have posted the Primary Tweet in response to Mr Greenwich having expressed his honestly held opinion that you are a disgraceful human being, because you espouse extremely hateful and dangerous views that cause a great deal of damage to vulnerable members of the LGBTQIA+ community.

…

17    Having deleted the Primary Tweet, you then made a public statement to The Saturday Telegraph on 1 April 2023 (the Follow Up Response), saying:

Sometimes in public life when you throw out insults they come back at you harder and truer. So boo-hoo Alex Greenwich. When he calls someone a disgusting human being for attending a meeting in a church hall, maybe attention will turn to some of his habits. Why delete the tweets? Greenwich goes into schools talking to kids about being gay. I didn’t want to be accused of anything similar, leaving that kind of content on my socials.

18    In your Follow Up Response, you double-downed on the Primary Tweet by making further public statements about Mr Greenwich. You well knew and intended that your comments would be published in the Saturday Telegraph and elsewhere to an audience of hundreds of thousands, or millions, of people. You made the comments maliciously, in order to maximise the damage to Mr Greenwich.

19    The Follow Up Response was disgracefully defamatory of Mr Greenwich. It was both calculated to, and did, expose Mr Greenwich to hatred, contempt and ridicule; and lowered the standing of Mr Greenwich in the estimation of ordinary people.

20    The Follow Up Response imputed:

(a)    as a matter of its natural ordinary meaning, that Mr Greenwich is a disgusting human being who goes to schools to groom children to become homosexual;

(b)    to readers of the Follow Up Response who know that Mr Greenwich is a member of the NSW Parliament – all or the vast majority – by way of true innuendo, that Mr Greenwich is not a fit proper person to be a member of the NSW Parliament because he goes to schools to groom children to become homosexual.

…

Mr Greenwich’s ancillary claims against you

25    Mr Greenwich has today lodged a complaint against you for vilification on the ground of homosexuality, and sexual harassment, under the Anti-Discrimination Act 1977 (NSW). We will attend to service of that complaint upon you shortly.

Settlement Offer

26    We are instructed that this matter can be resolved without recourse to litigation.

27    We are instructed that our client will treat this matter as fully and finally resolved (including withdrawal of the complaint referred to in paragraph 25) if:

A.    You publish to the public and to our client an apology and retraction in the following terms:

“Apology to Alex Greenwich MP

On 30 March 2023, I posted a Tweet about Alex Greenwich. I made further statements about Mr Greenwich that were published in the Saturday Telegraph on 1 April 2023.

I unreservedly retract and withdraw both that Tweet and those statements. I unreservedly apologise to Mr Greenwich for the hurt and distress caused to him by my communications.”

The apology and retraction is [sic] to be posted to your Twitter account (@realmarklatham) and is not to be embellished, added to, qualified, amended or deleted.

B.    You permanently disable comments on the apology and retraction and undertake to us to do nothing, whether directly or indirectly, to encourage, facilitate or aid and abet others to post comments relating to the apology and retraction.

C.    You undertake that you will not publish in future, in any form or by any medium whatsoever, whether directly or indirectly (including by encouraging, facilitating or aiding and abetting others), any imputations to the same purport or effect as the imputations of concern set out in paragraphs 9 and 20 above.

D.    You pay our client’s expenses reasonably incurred to the time this offer is accepted by you, such costs to be agreed or taxed in default of agreement.

E.    You pay our client $20,000 by way of compensation for the publication of the Publications.

28     For the avoidance of doubt, if you accept this this offer, but then either do not perform it fully or act in breach of its terms, then Mr Greenwich will be free to bring defamation proceedings against you and your acceptance or purported acceptance of the offer may not be relied upon as a bar to those proceedings.

34    Mr Greenwich accepted that he must demonstrate that the Concerns Notice was a genuine offer of compromise, and that it was unreasonable for Mr Latham not to accept it.

35    Costs are usually ordered on a party-party basis, but the court may exercise its discretion to order costs on some other basis if, and only if, the justice of the case so requires or there is some special or unusual feature in the case which justifies a departure from the usual costs order.

36    For example, if an applicant should have known that their case was doomed to fail, they could be obliged to pay costs on an indemnity basis. Likewise, where there is a clearly hopeless proceeding.

37    In CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 at [75], Moore, Finn and Jessup JJ said:

From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules [the predecessor provisions to the Federal Court Rules 2011 (Cth)]. However, where recourse is not had to the O 23, but reliance is placed upon the court’s general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party’s refusal of the Calderbank offer was unreasonable … It is not sufficient that the offer was a reasonable one … In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree’s rejection unreasonable.

(Citations omitted.)

38    In Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 at [5], Tamberlin, Finn and Sundberg JJ said:

The refusal of a Calderbank offer will not always attract an award of indemnity costs. The offeror must show that the rejection was unreasonable in the circumstances of the case … The respondents have not convinced us that the rejection was unreasonable. By the August 2008 offer all the respondents were offering to give up was any claim they may have to costs of the appeal. There was little in the offer that was attractive to the appellant. Of course the appellant was entirely unsuccessful on the appeal, for substantially the reasons explained by the respondents in their August letter. However the appeal was not on its face without any prospect of success. Counsel for the appellant was able, on the available material, to present arguments that required careful attention. It was only on a close examination of the documentation that the Court concluded that the appeal on liability should be dismissed. In retrospect, the appellant’s case was never a strong one, but on the principal points argued (liability) the appellant’s case was not so [weak] that it should be taken to have acted unreasonably in refusing the August offer, which offered little in the way of a genuine compromise.

(Citation omitted.)

39    Mr Reynolds submitted that Mr Greenwich cannot establish that Mr Latham’s refusal of the offer was unreasonable because:

(1)    the apology sought at [27A] of the Concerns Notice involved an unequivocal retraction and withdrawal in respect of both the primary tweet and the DT quotes, and Mr Latham was ultimately successful in respect of the latter;

(2)    the undertaking sought at [27C] of the Concerns Notice was effectively refused by me after I heard Mr Greenwich’s application for injunctive relief;

(3)    costs were not claimed in a fixed amount, and were sought in respect of both the primary tweet and the DT quotes (see [27D] of the Concerns Notice); and

(4)    compensation was claimed in a fixed amount, but again was sought in respect of both the primary tweet and the DT quotes (see [27E] of the Concerns Notice).

40    In her reply, Ms Rubagotti added the following reasons:

(1)    the undertaking sought at [27B] of the Concerns Notice would impose a widely cast and onerous obligation “to do nothing, whether directly or indirectly, to encourage, facilitate or aid and abet others to post comments relating to the apology and retraction” anywhere or at any time in the future, which a court might find difficult to enforce; and

(2)    the undertaking sought at [27C] of the Concerns Notice – which would require that Mr Latham “not publish in future, in any form or by any medium whatsoever, whether directly or indirectly (including by encouraging, facilitating or aiding and abetting others), any imputations to the same purport or effect as the imputations of concern set out in paragraphs 9 and 20” – picks up three imputations in respect of which Mr Greenwich failed at trial and encompasses the very “broad topic” of whether Mr Greenwich is a fit and proper person to be a member of the NSW Parliament.

41    Dr Collins submitted to the contrary, as follows:

(1)    the apology sought did not require an admission by Mr Latham that the primary tweet and the DT quotes were defamatory, but rather sought a retraction and withdrawal because those publications had caused hurt and distress (which I found in the primary judgment they did);

(2)    the payment of $20,000 by way of compensation was a reasonable and generous offer because Mr Greenwich “has beaten it by 700%” through the award of damages in court; and

(3)    the apology sought was “anodyne”.

42    Dr Collins summed up his case this way (see transcript at page 30):

Our simple submission, and either your Honour will accept this or not, at the end of the day, is we submit there must be consequences for a party who has engaged in conduct in litigation that has been found to be improper, unjustifiable and lacking in bona fides, who had rejected a, in our submission, manifestly reasonable offer to settle the proceeding, put Mr Greenwich through the delay, cost and stress of having to go to trial, only for him – Mr Latham, then to lose the case and be ordered to pay damages seven times higher than Mr Greenwich had offered to settle for at the outset. We submit that’s the prism within which your Honour would determine whether it’s an appropriate case for an indemnity cost order.

43    Dr Collins also faintly pressed his submission that a Calderbank offer contained in a solicitor’s letter dated 13 November 2023 was also unreasonably rejected, but there are myriad problems with it, and he was right not to press the point.

44    I am not persuaded that it was unreasonable for Mr Latham to reject the offer contained in the Concerns Notice. It is true that, in the events that occurred, he now has an obligation to pay a much larger sum of money by way of damages, and doubtless the costs payable will far exceed (by hundreds of thousands of dollars) the costs that could have been negotiated in or around April 2023. But the DT quotes were not defamatory, and the claim in respect of them was a significant part of the Concerns Notice. Further, the undertakings sought from Mr Latham were very broad and unlimited in time, and if agreed to would have imposed upon him onerous obligations to monitor social media that may have posed difficulties in enforcement.

45    For all those reasons, in my view Mr Latham’s refusal to accept the terms of the Concerns Notice was not unreasonable.

46    It follows that I decline to make an order that costs be awarded on an indemnity basis.

Disposition

47    I will accordingly order that the respondent pay the applicant’s costs of the proceeding, including reserved costs, on a party-party basis, to be taxed in the absence of agreement.

Associate:

Dated:    4 April 2025