Federal Court of Australia

Thurston v Fox Sports Australia Pty Limited (No 2) [2025] FCA 626

ORDERS

THE COURT ORDERS THAT:

1. The applicants are to pay 75% of the first respondent’s costs of the proceeding on a party and party basis to be assessed as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) (Rules).

2. The first respondent is to file and serve a Costs Summary in accordance with [4.10] to [4.12] of the Court’s Costs Practice Note (GPN-COSTS), not exceeding 10 pages in length, by 4.00 pm on Friday, 4 July 2025.

3. The applicants are to file and serve any Costs Response in accordance with [4.13] and [4.14] of the Costs Practice Note, not exceeding 10 pages in length in respect of the costs sought by the first respondent, by 4.00 pm on Friday, 18 July 2025.

4. The first respondent is to file and serve any submissions in accordance with [4.15] of the Costs Practice Note, limited to three pages, by 4.00 pm on Friday, 25 July 2025.

5. The applicants are to file and serve any submissions in accordance with [4.15] of the Costs Practice Note, limited to three pages in respect of the costs sought by the first respondent, by 4.00 pm on Friday, 1 August 2025.

6. The applicants are to pay the costs of the sixth, seventh and eighth respondents of the proceeding on a party and party basis to be assessed as a lump sum pursuant to r 40.02(b) of the Rules.

7. The sixth, seventh and eighth respondents are to file and serve a Costs Summary in accordance with [4.10] to [4.12] of the Costs Practice Note, not exceeding 10 pages in length, by 4.00 pm on Friday, 4 July 2025.

8. The applicants are to file and serve any Costs Response in accordance with [4.13] and [4.14] of the Costs Practice Note, not exceeding 10 pages in length in respect of the costs sought by the sixth, seventh and eighth respondents, by 4.00 pm on Friday, 18 July 2025.

9. The sixth, seventh and eighth respondents are to file and serve any submissions in accordance with [4.15] of the Costs Practice Note, limited to three pages, by 4.00 pm on Friday, 25 July 2025.

10. The applicants are to file and serve any submissions in accordance with [4.15] of the Costs Practice Note, limited to three pages in respect of the costs sought by the sixth, seventh and eighth respondents, by 4.00 pm on Friday, 1 August 2025.

11. The quantum of the lump sums for the costs of both the first respondent payable pursuant to Order 1 of these orders and the sixth, seventh and eighth respondents payable pursuant to Order 6 of these orders shall be determined by a Registrar of the Court in such manner as the Registrar determines to be appropriate, including by oral hearing, or on the papers.

12. Until the final determination of a lump sum figure by the Registrar for the costs of the first respondent payable pursuant to Order 1 of these orders, or further order, a sum of $557,515.63 from the sums paid by or on behalf of the fourth and fifth respondents to the applicants’ solicitors is to be retained in the trust account of the applicants’ solicitors and not disbursed.

13. Until the final determination of a lump sum figure by the Registrar for the costs of the sixth, seventh and eighth respondents payable pursuant to Order 6 of these orders, or further order, a sum of $280,268.76 from the sums paid by or on behalf of the fourth and fifth respondents to the applicants’ solicitors is to be retained in the trust account of the applicants’ solicitors and not disbursed.  

14. Orders 3 and 5 of the orders made on 4 June 2025 be vacated.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1 On 7 February 2025 I delivered a judgment in this proceeding. The issue to be determined in the proceeding was whether certain media respondents had published defamatory imputations to the effect that the applicants had engaged in racist conduct at a National Rugby League (NRL) match: Thurston v Fox Sports Australia Pty Limited [2025] FCA 54 (Judgment or J).

2 The applicants succeeded in their claims against the fourth and fifth respondents (Channel 7 parties). The claims advanced by the applicants, however, against the first respondent (Fox Sports) were dismissed on the basis of the defence of honest opinion and the claims against the sixth, seventh and eighth respondents (Channel 9 parties) were dismissed on the basis that the pleaded imputations were not conveyed by the impugned publications. The applicants had discontinued their claims against the second and third respondents prior to trial.

3 These reasons for judgment concern a dispute that has arisen between the applicants and four of the respondents as to the appropriate orders for costs given the outcome of the proceedings and whether an interlocutory injunction granted over a sum paid to the applicants pursuant to a deed of settlement should be extended until the making of final orders as to the quantification of the disputed costs orders.

4 Fox Sports and the Channel 9 parties seek orders for their costs up to the date of a settlement offer they made on 1 September 2022 on a party and party basis and thereafter on an indemnity basis. The applicants seek orders that they only pay a proportion of the costs of Fox Sports and the Channel 9 parties and there be no special costs order.

5 For the following reasons, I have concluded that the applicants are to pay 75% of the costs of Fox Sports of the proceeding and the costs of the Channel 9 parties of the proceeding and there be no special costs orders. I have also concluded that pending the quantification of the costs of Fox Sports and the Channel 9 parties, specified sums from the settlement moneys paid to the applicants by the Channel 7 parties are to be retained in the applicants’ solicitors’ trust account.

6 These reasons for judgment are to be read in conjunction with the Judgment and assume a familiarity with it.

B.     Costs orders

B.1.     Overview

7 In the Judgment at [314], I had indicated that subject to any submissions to the contrary, I proposed to make orders that (a) the applicants pay 50% of the costs of Fox Sports given Fox Sports was unsuccessful on defamatory meaning, justification and qualified privilege and only succeeded on its honest opinion defence, (b) the applicants pay the costs of the Channel 9 parties, and (c) the Channel 7 parties are to pay the applicants’ costs.

8 The applicants now do not seek any costs orders against the Channel 7 parties given the receipt by them of a sum of money from the Channel 7 parties under a deed of settlement.

9 The applicants contend that they should only be ordered to pay the costs, on a party and party basis, of Fox Sports of the proceeding that “are attributable only to Fox Sports” and the costs of the Channel 9 parties of the proceeding that “are attributable only to the Channel 9 parties”. In the alternative, the applicants seek orders that they pay 25% of the costs of the proceeding of each of Fox Sports and the Channel 9 parties, on a party and party basis.

10 Both Fox Sports and the Channel 9 parties seek orders that the applicants pay the costs of Fox Sports and the Channel 9 parties of the proceeding on a party and party basis until 1 September 2022 and thereafter on an indemnity basis.

B.2.     The primary position advanced by the applicants

11 The primary position advanced by the applicants is inherently problematic. I cannot see any practical or coherent way in which a costs assessor or the Court could identify what costs of Fox Sports in the proceeding were attributable “only to Fox Sports” and what costs of the Channel 9 parties were attributable “only to the Channel 9 parties”.  The respondents were represented by common counsel and although Fox Sports retained separate solicitors, the Channel 9 parties and the Channel 7 parties retained the same solicitors in the period leading up to and during the trial. Moreover, the defences of justification were advanced on a common basis for all respondents and there was otherwise a significant factual overlap in the evidence relied upon by the respondents in their various defences.

B.3.     Proportionate costs orders

12 It is well established that the costs of a successful party should only be discounted in special  circumstances. As Stewart J explained in Siemens WLL v BIC Contracting LLC (costs) [2024] FCA 201 at [9]:

The court may depart from the general rule and exercise its discretion to apportion costs on an issue by issue basis where there are special circumstances to warrant a departure (Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 ALJR 270 at [6]), such as where there has been disentitling conduct of the successful party, where the raising of the unsuccessful issue was not justified, or it was so unreasonable that it is fair and just to make the order apportioning costs (Findex Group Ltd v McKay (No 3) [2020] FCA 259 at [9]), or where the particular issue was clearly dominant or separable (Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]).

13 For present purposes it is the “dominant or separable” basis for an apportionment of costs that is relevant. The passage cited by Stewart J in Siemens, in the decision of the Court of Appeal of the New South Wales Supreme Court in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA) at [38](first dot point), was relevantly in these terms:

Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

14 This statement of principle in Bostik has also recently been approved in Edwards v Nine Network Australia Pty Limited (No 6) [2024] FCA 758 at [19] (Wigney J).

15 It has been said that whether an order contrary to the usual order that costs follow the event should be made necessarily depends on all the circumstances viewed against the wide discretionary powers of the Court that should be liberally construed: Bostik at [38](fourth dot point) citing State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing). At the same time, however, as the High Court made plain in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; (2015) 90 ALJR 270 at [6] (French CJ, Kiefel, Nettle and Gordon JJ), “applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like” are not to be encouraged.

16 Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion turning on matters of impression and evaluation: Bostik at [38](sixth dot point) citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36] (Beazley, Tobias and McColl JJA).

17 As explained above, the applicants contend that if their primary position on costs is not accepted then Fox Sports and the Channel 9 parties should each only receive 25% of their costs of the proceedings. They submit that orders in those terms would be appropriate principally because (a) all respondents relied on the defence of justification, (b) the defence took up the majority of the Court’s time and involved extensive cross examination of each of the applicants, (c) it was the major issue joined at trial by the parties, and (d) the defence failed.

18 Fox Sports and the Channel 9 parties contend that they were successful at the trial, no special circumstances have been established and they should each be awarded costs without any apportionment reflecting any partial success by the applicants. They submit that no issues in the proceedings were dominant because while the justification defence was an important issue to be determined, it was no more or less dominant than the qualified privilege defence and the honest opinion defence raised by Fox Sports.

19 The special circumstances advanced by the applicants for discounting the costs orders to be made in favour of Fox Sports and the Channel 9 parties is confined to the proposition that the justification defence was the dominant issue in the proceeding and the respondents were unsuccessful in advancing that defence. The applicants do not contend that there was any specific disentitling conduct on the part of Fox Sports or the Channel 9 parties that would justify any discount to those costs orders.

20 I am satisfied that the justification defence advanced by the respondents can fairly be characterised as the dominant issue that arose in the proceedings. Much of the evidence and submissions of the parties were devoted to the respondents’ attempts to establish that the applicants had engaged in racial abuse of Mr Naden, particularly in the cross examination of the applicants. I accept that not insignificant aspects of the evidence relevant to the justification defence were also relevant to the other defences relied upon by Fox Sports, including its honest opinion defence. It follows that I could not conclude that the justification defence was entirely separable but it does not preclude a finding that it was the dominant issue in the proceeding. It is not necessary for an issue to be both dominant and separable. The much cited statement of principle in Bostik is “dominant or separable”. Clearly, however, the degree of separability may well have a direct bearing on the extent of any discount to a costs order that might otherwise be made in favour of a successful party.

21 A measure of the dominance of the justification defence, however imperfect, is that 19 pages of the Judgment addressed the justification defence in contrast to the 14 pages directed to Fox Sports’ unsuccessful qualified privilege defence and only 8 pages directed to Fox Sports’ successful honest opinion defence. Such a measure is imperfect not least because of the not insignificant evidentiary overlap between the justification defence and Fox Sports’ honest opinion defence, but also the evidentiary overlap between Fox Sports’ qualified privilege and honest opinion defences.

22 Ultimately, however, my conclusion that the justification defence was the dominant issue in the proceeding was driven more by an evaluative assessment of the significance of that issue to the manner in which all parties approached it and the impact that it had on their respective presentation of their cases. In many ways, the attempts by the respondents to prove the truth of the imputations that the applicants had engaged in racist abuse overshadowed and shaped the proceedings in a manner fundamentally different to the other defences relied upon by the respondents.

23 Nonetheless, a lack of success on a dominant issue does not necessarily give rise to an entitlement to a discount to a costs order in order to do justice to the parties in a principled manner.

24 In this case the positions of Fox Sports and the Channel 9 parties are materially distinguishable.

25 The applicants succeeded against Fox Sports on defamatory meaning, justification and qualified privilege.

26 In stark contrast, the applicants failed to even establish defamatory meaning against the Channel 9 parties. Had the proceedings been limited to the Channel 9 parties it would not have been necessary to have even considered any defence, including any justification defence.

27 Further, unlike Fox Sports, the Channel 9 parties advanced no evidence in support of any qualified privilege or honest opinion defences. The Channel 9 parties did seek to rely on the evidence advanced by Fox Sports in aid of its justification defence but this reliance did not materially add to the costs incurred by the parties with respect to the justification defence.

28 In light of these considerations, I have concluded that there should be no discount to the costs order in favour of the Channel 9 parties but an appropriate exercise of discretion requires an apportionment costs order to be made in favour of Fox Sports. The determination of an appropriate discount is necessarily an intuitive and evaluative exercise, particularly in circumstances where a dominant issue is not capable of being entirely severed from other issues in a proceeding. The position remains, however, that I am satisfied that the justification defences were the dominant issue in the proceeding and Fox Sports was unsuccessful on all significant issues, other than its honest opinion defence. In all the circumstances, and in light of the submissions now advanced by Fox Sports on the degree of overlap, I have concluded that the appropriate costs order is that the applicants pay 75% of the costs of Fox Sports. Had I have been satisfied that it was possible to sever more completely the justification defence from Fox Sports’ successful honest opinion defence, the percentage would have been further reduced.

B.4.     Indemnity costs

29 Fox Sports and the Channel 9 parties seek an award of indemnity costs on the basis that the applicants unreasonably rejected a Calderbank offer of compromise made on 1 September 2022 and/or pursuant to s 40(2)(b) of the Defamation Act 2005 (NSW) (Defamation Act) on the basis that the applicants unreasonably failed to accept that settlement offer. Section 40(2)(b) of the Defamation Act applies in this Court for the reasons explained by Bromwich J in Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139; [2020] FCA 1163 at [21]-[40]. For present purposes no particular emphasis was placed on s 40(2)(b) by the parties and no party sought to draw any relevant distinction between the two alternatives.

30 The matters to be considered in assessing whether a rejection of an offer of compromise in a Calderbank letter had been unreasonable, include (a) the stage of the proceedings at which the offer was received, (b) the time allowed for the offeree to consider the offer, (c) the extent of the compromise offered, (d) the offeree’s prospects of success assessed as at the date of the offer, (e) the clarity with which the terms of the offer were expressed and (f) whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it: Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486 at [30] (Lee J).

31 During the course of the proceedings, the respondents made offers of settlement expressed to be Calderbank offers on 6 April 2022, 1 September 2022 and 2 August 2023. Fox Sports and the Channel 9 parties only rely upon the making of the 1 September 2022 offer in support of their present applications for indemnity costs orders (1 September 2022 Calderbank letter).

32 The 1 September 2022 Calderbank letter contained an offer to pay each of the applicants the sum of $40,000 together with their legal costs to the date of the offer. It was expressed to be severable and capable of being accepted by any of the applicants in respect of any corporate group. The letter gave as an example the situation where the offer was accepted by one of the applicants in respect of one of the (four) corporate groups (resulting in the payment of $10,000 plus 25% of their legal costs of the proceeding to the date of the offer).

33 The 1 September 2022 Calderbank letter was expressed to be made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333 and/or s 40(2)(b) of the Defamation Act. The time allowed for the applicants to consider the offer was 15 days. The offer was made on the same day that the applicants had received 12 outlines of evidence from the respondents (including outlines of evidence anticipated to be given by Mr Naden, Mr Knowles, Mr Catterick, Ms Yates and Mr Alexander). Further, by that date interrogatories had been administered and answered and the parties had provided discovery.

34 Fox Sports and the Channel 9 parties submit that it must have been apparent to the applicants as at the date of the offer (as recorded in the 1 September 2022 Calderbank letter) that Mr Naden was going to give evidence to the effect that they had abused him, that he had heard the Rolling Sound, as defined at J [68], and perceived their abuse as racial abuse (evidence the Court ultimately accepted). They submit that it must have also been apparent from the outlines of evidence, including those from the witnesses for Fox Sports, that there was a very real prospect that the Court would find that Ms Yates and Mr Alexander were expressing genuine opinions based on at least Mr Naden’s reports of being racially abused and the actions that Mr Knowles and others took in response to those reports. In summary, they submit it must have been apparent to the applicants that there was a very real prospect of the honest opinion defence succeeding and of other factual findings being made against their interests.

35 I am not persuaded that in all the circumstances, the applicants’ rejection of the 1 September 2022 Calderbank letter was unreasonable or that consistently with ordinary Calderbank principles and/or s 40(2)(b) of the Defamation Act, Fox Sports and the Channel 9 parties should be awarded indemnity costs from the date of the 1 September 2022 Calderbank letter.

36 I accept that the time allowed for the applicants to consider the offer was reasonable, the offer was expressed with sufficient clarity to be readily understood, it was made at a time when the applicants were in a position to make at least some informed assessment of their prospects of success as at the date of the offer and that it foreshadowed an application for indemnity costs.

37 I am not satisfied, however, that the extent of the compromise offered was sufficient to render the refusal of the offer unreasonable either on Calderbank principles or pursuant to s 40(2)(b) of the Defamation Act. The defamatory meanings contended for by the applicants of engaging in racist abuse of an Indigenous Australian player at an NRL game were very serious, and were found to have been conveyed by both Fox Sports and the Channel 7 parties in their respective broadcasts. Each of the applicants was awarded not $10,000, but rather $200,000, for their defamation claims brought against the Channel 7 parties.

38 Equally significant, the 1 September 2022 Calderbank letter provided no offer of any apology or other acknowledgement that the applicants had not engaged in racist abuse. This was a significant omission given the importance generally for defamation applicants to vindicate their reputation, particularly when a respondent chooses to justify the pleaded imputations. Rather the offer provided for the proceedings against respondents with whom the applicant or applicants had accepted the offer of $10,000 to be discontinued and provided:

The parties who agree to this offer enter into a settlement and release agreement formalising these terms including releases, confidentiality obligations, and provision for recovery from any party of any settlement accounts paid in the event any party breaches their obligations of confidentiality under that agreement.

39 The significance of the absence of any vindication in this case was subsequently highlighted in the evidence that the applicants gave of the impact on them of the publication of the allegations that they had engaged in racist abuse, an impact that was exacerbated by the extent of their own Indigenous Australian heritage in the case of Mr Townsend, or connections with Indigenous Australian communities, in the case of Mr Thurston and Mr Renner. The evidence was compelling and persuasive, it was not challenged and it was corroborated by other witnesses: J [258]-[286]. In all the circumstances, declining an offer of $10,000 with no vindication pursuant to the terms of a confidential settlement was not unreasonable.

40 The significance of reputational issues and vindication was also emphasised in this case because the 1 September 2022 Calderbank letter included the following thinly veiled and unhelpful threat, at least for the parties now contending that the failure to accept a compromise offer was unreasonable:

Due to the high profile nature of this proceeding, this evidence will be reported extensively and it should be abundantly clear to the applicants that this evidence will have serious reputational consequences.

41 Moreover given (a) the witness outlines only provided an outline of the evidence that the respondents anticipated would be given, and (b) the inherent complexities in determining defamatory meaning and defences of qualified privilege and honest opinion, it is difficult to place significant weight on the proposition that the applicants must have recognised that their claims against Fox Sports and the Channel 9 parties would not succeed, particularly if due consideration is given to the dangers of hindsight bias.

C.     Interlocutory injunction

42 Shortly prior to the hearing of the costs argument, Fox Sports and the Channel 9 parties requested and received an undertaking from the applicants’ solicitors that they would not disburse the payment of a sum of money that they had received from the Channel 7 parties pursuant to the Deed of Settlement (settlement sum) until 4.15 pm on the day of the costs hearing.

43 By amended interlocutory applications filed on the day of the costs hearing, Fox Sports and the Channel 9 parties sought orders restraining the applicants’ solicitors from disbursing any of the settlement sum until further order. Fox Sports and the Channel 9 parties contended that the orders were necessary because of a danger that the settlement sum would be dissipated and the applicants would no longer be in a position to meet the likely costs orders that would be made in favour of Fox Sports and the Channel 9 parties.

44 Fox Sports and the Channel 9 parties relied on affidavit evidence from their respective solicitors, Andrew Stewart of Baker Mckenzie and Justin Quill of Thomson Geer.

45 Mr Stewart gave evidence that Fox Sports had incurred total costs of $1,143,621.80 in the proceeding and that in his 34 years as a practising solicitor, recovery of costs on an indemnity basis would entitle a party to approximately 85 to 90% of their total costs and on a standard basis a recovery of approximately 65 to 70% of total costs.

46 Mr Quill gave evidence that the Channel 9 parties had incurred total costs of $431,182.70 in the proceeding and that in his approximately 25 years as a practicing solicitor, recovery of costs on an indemnity basis would entitle a party to approximately 90% of their total costs and on a standard basis approximately 70% of total costs. Mr Quill also gave evidence of national property ownership searches that had been undertaken by Amelia Causley-Todd, a senior associate employed by the solicitors for the Channel 9 parties, at his direction, for each of the applicants. The searches disclosed no assets were held in the name of any of the applicants.

47 The applicants opposed the making of any orders restraining their solicitors from disbursing the settlement sum to them and did not proffer any further undertaking with respect to the disbursement of those funds. The applicants submitted that they were entitled to the fruits of their victory and the applications advanced by Fox Sports and the Channel 9 parties were a naked attempt to circumvent the usual procedures to obtain an asset preservation order. The applicants submitted that in the usual course a party seeking asset preservation orders would have to demonstrate that there was some attempt or a strong likelihood that there had been misappropriation or money was about to disappear in some way in an attempt to avoid the consequences of a judgment. They submitted that the property searches conducted by Ms Causley-Todd only provided evidence of a lack of property assets not evidence of dissipation.

48 The Court has an implied power pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to grant the interlocutory injunctions sought by Fox Sports and the Channel 9 parties: Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23. The Court also has an express power in r 7.32(1) of the Federal Court Rules 2011 (Cth) to make an order for the purpose of meeting a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied: Jadwan Pty Ltd v Rae & Partners (A Firm) (No 5) [2021] FCA 248 at [18] (Wheelahan J).

49 In Jadwan, the respondents had obtained security for their costs prior to trial and were successful at trial. A dispute then arose as to draft assessments by a Registrar of the Court as to the costs payable by the applicant. Jadwan Pty Ltd was the trustee of a family trust and was the registered proprietor of two properties in Hobart that it had determined to sell. The respondents sought orders that Jadwan pay into Court the net proceeds payable to, or otherwise receivable by it, from the disposal of either property given (a) Jadwan did not hold any property beneficially, (b) the beneficiaries of the family trust were secured creditors under registered mortgages, and (c) Jadwan proposed to dispose by way of sale the principal assets of the trust. As the respondents’ bill of costs had not been assessed or taxed, the respondents were not yet in a position to enforce the costs orders in a monetary amount against Jadwan.

50 It is well established that an applicant for an order in the nature of an asset preservation order does not have to establish that the risk of dissipation is more probable than not or adduce evidence of an intention on the part of a respondent to dissipate assets: Basi v Namitha Nakul Pty Ltd [2019] FCA 743 at [9] (Wigney J) citing Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 273 ALR 194; [2010] FCA 1014 at [8]-[10] (Kenny J); Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) [2012] FCA 1064; (2012) 90 ATR 711 at [23] (Perram J).

51 In all the circumstances, Wheelahan J concluded in Jadwan that he was satisfied that there was a danger of dissipation of assets, although not a danger he could quantify with any certainty. His Honour more comfortably came to that conclusion in the absence of any evidence from Jadwan as to its current state of affairs, when it was in the best position to adduce such evidence: Jadwan at [24]-[25]; cf Blatch v Archer (1774) 1 Cowp 63.

52 In Jadwan, the shortfall between the amount provided by way of security for costs and the amount claimed by the first to third respondents in their bill of costs was $497,147.55. His Honour was prepared to infer that the bill of costs had been professionally prepared and represented bona fide claims for costs. His Honour accepted, however, that claims for costs in that magnitude “rarely, if ever survive the scrutiny of taxation” and therefore concluded by taking a broad approach to the task, and doing the minimum necessary to do justice between the parties, that Jadwan should pay into Court an amount of $375,000 from the sale of the properties on account of the costs of the first to third respondents’ costs: Jadwan at [27]. As to the fifth respondent’s costs at first instance, the shortfall between the amount paid into Court and the Registrar’s estimate was $119,200. His Honour was prepared to proceed on the basis that the Registrar’s estimate was reliable and objective and therefore it was appropriate that Jadwan should pay that sum into Court from the sale of the properties: Jadwan at [28].

53 I am equally satisfied in the present circumstances that there is a danger of a dissipation of assets that would cause a costs judgment of this Court to be wholly or partly unsatisfied. The quantum of the costs orders in favour of Fox Sports and the Channel 9 parties are inevitably likely to be very substantial, the national property searches disclose that the applicants do not hold any property in their own names and the applicants have advanced no evidence as to their financial positions. The only prejudice advanced by the applicants if the interlocutory injunctions were granted, other than a general complaint about not having access to the funds, was the potential impact that not having access to the funds might have on the applicants pursuing an appeal against Fox Sports and the Channel 9 parties.

54 It is important, however, that the restraint imposed on the disbursement of the settlement sum from their solicitor’s trust account is the minimum necessary to do justice between the parties and that the quantification of costs proceed as expeditiously as possible.

55 Unlike in Jadwan, Fox Sports and the Channel 9 parties have not prepared bills of costs and the Court does not have the benefit of any estimate of costs from a Registrar. Rather, the evidence is only a figure of total costs incurred in the proceeding. Moreover, in circumstances where all the respondents were represented by common counsel and both the Channel 7 parties and the Channel 9 parties retained the same solicitors up to and during the hearing, questions as to the apportionment of costs between the ultimately successful Fox Sports and the Channel 9 parties and the unsuccessful Channel 7 parties would inevitably warrant close scrutiny.

56 I infer for present purposes that the figure of $1,143,621.80 is a bona fide calculation of all costs billed to Fox Sports in connection with this proceeding. It would then follow given the proportionate costs order that I propose to make in favour of Fox Sports that the starting position for consideration would be $857,716.35 ($1,143,621.80 x 0.75). In order to then arrive at an estimate of costs on the standard party and party basis I consider that 65% is the appropriate percentage to apply, being the percentage at the lower end of the range advanced by Mr Stewart, particularly given the absence of any supporting material for the total costs figure and the overlap in counsel representation. I have therefore concluded that pending the quantification of the costs order that I propose to make in favour of Fox Sports, that an amount of $557,515.63 ($857,716.35 x 0.65) be retained in the applicants’ trust account.

57 I infer for present purposes that the figure of $431,182.70 is a bona fide calculation of all costs billed to the Channel 9 parties in connection with this proceeding. In order to then arrive at an estimate of costs on the standard party and party basis I consider that 65% is the appropriate percentage to apply, being a percentage at the lower end of the range advanced by Mr Stewart, particularly given the absence of any supporting material for the total costs figure and the overlap in both counsel and solicitor representation. I have therefore concluded that pending the quantification of the costs order that I propose to make in favour of the Channel 9 parties, that an amount of $280,268.76 ($431,182.70 x 0.65) be retained in the applicants’ trust account.

D.     Disposition

58 For the foregoing reasons orders will be made that the applicants are to pay 75% of the costs of Fox Sports of the proceeding on a party and party basis and the applicants are to pay the costs of the Channel 9 parties of the proceeding on a party and party basis. The quantum of those costs orders are to be determined by a Registrar on a lump sum basis and procedural orders will be made for the preparation of costs summaries, responses, and submissions in accordance with [4.10] to [4.15] of the Court’s Costs Practice Note (GPN-COSTS).

59 Next, an order will be made that until the final determination of a lump sum figure by the Registrar for the costs of Fox Sports, a sum of $557,515.63 is to be retained in the trust account of the applicants’ solicitors and not disbursed from the sums paid by or on behalf of the Channel 7 parties to the applicants’ solicitors.

60 An order will also be made that until the final determination of a lump sum figure by the Registrar for the costs of the Channel 9 parties, a sum of $280,268.76 is to be retained in the trust account of the applicants’ solicitors and not disbursed from the sums paid by or on behalf of the Channel 7 parties to the applicants’ solicitors.

61 Finally, orders will be made vacating (a) the interim injunction I granted on 4 June 2025 with respect to the settlement sum, and (b) the interim non-publication order I made under s 37AI of the FCA Act at the commencement of the costs hearing over the quantum of the settlement sum. The document containing the settlement sum was not tendered and the quantum of the settlement sum was not referred to in the course of the costs hearing or in any written submissions.

Associate:

Dated:    16 June 2025

SCHEDULE OF PARTIES