Federal Court of Australia

Al Muderis v Nine Network Australia Pty Ltd (Grant Costs) [2026] FCA 681

ORDERS

THE COURT ORDERS THAT:

1.    Order 3 made by Registrar Birchall on 22 December 2023 be set aside.

2.    The applicant is to pay Mr Grant’s costs of and incidental to that part of Mr Grant’s amended interlocutory application filed 29 November 2023, relating to the setting aside of paragraph 2 of the subpoena to produce documents issued by this Court at the request of the applicant on 9 October 2023, including but not limited to:

(a)    The costs of and incidental to the preparation of evidence, submissions and the hearing before Registrar Birchall on 18 December 2023;

(b)    The costs of and incidental to the supplementary submissions filed following the hearing before Registrar Birchall on 18 December 2023; and

(c)    The costs of and incidental to the making of the costs submissions filed on behalf of Mr Grant, dated 2 February 2024.

as agreed or assessed.

3.    The applicant pay 50% of Mr Grant’s costs in relation to the hearing on 7 March 2024, as agreed or assessed.

4.    The applicant pay Mr Grant’s costs of and incidental to this application, as agreed or assessed.

5.    The applicant pay Mr Grant’s reasonable costs or expenses of complying with the subpoena, as agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 9 October 2023, the applicant caused a subpoena to be issued to Mr Mitchell Grant, a witness in the proceedings. This judgment addresses three costs issues which arise therefrom, which have been addressed in the written submissions. It has not been suggested any of those issues raised in the written submissions are no longer being pressed. This application is determined on the papers.

2    First, Mr Grant’s costs and expenses in complying with the subpoena.

3    Second, Mr Grant’s interlocutory application filed on 8 March 2024 for review of the costs order made by Registrar Birchall. Registrar Birchall delivered reasons (R) and made orders on 22 December 2023.

4    Third, Mr Grant’s costs of and incidental to the argument before me on 7 March 2024.

First issue – costs of complying with the subpoena

5    In relation to the first issue, pursuant to r 24.22 of the Federal Court Rules 2011 (Cth) (FCR), Mr Grant seeks recovery of reasonable costs and expenses incurred in complying with the subpoena.

6    The applicant does not oppose an order that he pay Mr Grant’s reasonable costs or expenses of complying with the subpoena, with the amount to be assessed by a registrar of this Court. That is an appropriate approach, and therefore no further consideration needs to be given to this issue.

Second issue – review of the Registrar’s costs order

7    As to the second issue, this relates to a hearing which occurred before Registrar Birchall in which Mr Grant challenged aspects of the subpoena.

8    Mr Grant seeks the following order:

(1)    pursuant to s 35A(5) of the Federal Court Act 1976 (Cth) (FCA Act) the costs decision of Registrar Birchall, order 3 made by Registrar Birchall as to costs on 22 December 2023, and the decision of Registrar Birchall to decline to vary order 3, be reviewed and the orders set aside;

(2)    the applicant pay Mr Grant’s costs of and incidental to that part of Mr Grant’s amended interlocutory application filed 29 November 2023, relating to the setting aside of paragraph 2 of the subpoena to produce documents issued by this Court at the request of the applicant on 9 October 2023; and

(3)    the applicant pay Mr Grant’s costs of and incidental to this application.

9    In summary, the hearing before the Registrar was directed to category 2 of the subpoena which sought:

All documents evidencing communications with any of the following persons, relating to Dr Munjed Al Muderis or osseointegration, from May 2022 to date:

[with a list of 38 individuals].

10    Having determined the issue, Registrar Birchall then concluded each party had a measure of success in the hearing and as such, each should bear their own costs: R[68]-[71]. Mr Grant relies on the affidavit of Ms Marina Olsen affirmed 8 March 2024 in support of this application.

11    In reviewing costs orders, the Court is conducting a rehearing de novo under s 35A of the FCA Act. The review does not hinge, or focus, upon error in the decision of the registrar: Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 (Bechara) at [17]. The matter is considered afresh on the evidence and law at the time of the review: Mazukov v University of Tasmania [2004] FCAFC 159 at [22]-[24]; Bechara at [17].

12    The awarding of costs is at the discretion of the Court: FCA Act s 43. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 (Ruddock) at [11]; Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]-[7]. Nonetheless a successful party may be deprived of a proportion of its costs if it succeeded only on a portion of its claim, or failed on issues that were not reasonably pursued, or where the result of the litigation might be described as mixed. The general rule assumes that the successful party will have incurred costs because the other party’s conduct made it necessary to bring the proceeding: Ruddock at [12]. There was no issue on this application that the Court can award costs to a third party on an application to set aside a subpoena.

13    In exercising the discretion to award costs, s 37N(4) of the FCA Act requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see FCA Act s 37M(1); Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [3].

14    Mr Grant contended that he enjoyed meaningful success in narrowing paragraph 2 of the subpoena, and an order was made in his favour as it was set aside in part: see R[20], [22], [27], [70] and see FCR r 40.04(a). He submitted the applicant’s approach to the hearing resulted in him having to respond to a wide range of arguments, many of which were unsuccessful: see R[22], [34]-[36], [39], [41], [47], [50], [54]-[59]. During the hearing, the applicant relied on matters arising from a transcript in different proceedings between Mr Heston Russell and the Australian Broadcasting Corporation but did not have that transcript available. As a result, Mr Grant was required to address that issue in supplementary submissions. Further, the applicant did not comply with the original timetabling orders for the application and served his evidence late, after Mr Grant filed his first round of written submissions. The evidence was voluminous. This necessitated further timetabling orders to be put in place. Mr Grant also submitted if the category was not set aside it ought to be narrowed.

15    The applicant submitted the costs order was plainly correct and noted all the arguments of Mr Grant were put to Registrar Birchall and failed so this Court should follow the same course. The applicant submitted he successfully opposed Mr Grant’s bid to set aside paragraph 2 as a whole on three different bases. The applicant pointed to the refusal of Mr Grant’s challenge to the subpoena on the basis it was oppressive: see R[60]-[61]. He submitted that in light of his success on the application, Mr Grant’s application for the applicant to pay the costs of his application to set aside paragraph 2 “has the distinct air of unreality about it”. The applicant submitted that the fundamental problem with Mr Grant’s submission that paragraph 2 was narrowed, is that “Dr Al Muderis beat Mr Grant’s offer by a significant margin” since Mr Grant failed to completely exclude communications about osseointegration and communications after October 2022. As to the submission about the transcript from Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 (Russell), Russell appeared at [7(a)] of Dr Al Muderis’ submissions. The discussion of Russell arose in an exchange between counsel for Dr Al Muderis and Registrar Birchall, and it was Registrar Birchall that requested the transcript. As to the failure to comply with timetabling orders, the applicant submitted that this resulted from Mr Grant’s substantially amended application on 29 November 2023, which included a complicated access regime and orders for the applicant to pay Mr Grant’s costs incurred in complying with the subpoena.

16    At the outset I note, as observed by Registrar Birchall, the party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Wong v Sklavos [2014] FCAFC 120 at [12]. It was the applicant who had to demonstrate the relevance of the category.

17    The breadth of the category is plain from its recitation above. Registrar Birchall concluded at R[20]:

As the first step in setting aside the category in part, I will exclude all persons from the list except Bruha, Hernandez, Smith, Warland and Mattiske (specified persons). In my view, the inclusion in the subpoena of the other individuals in the list amounts to fishing.

18    At R[22], Registrar Birchall concluded:

…there is in my opinion a reasonable possibility that communications between the specified persons and Mr Grant could include communications about osseointegration that, in my view, have no relevance to the proceedings. For those reasons, I am inclined to set aside the category to exclude ‘osseointegration’ as an unqualified topic. I will, however, allow it to stand with a more limited scope.

19    That limited scope is described at R[27]:

Therefore, I propose to carve out from the exclusion from the category of ‘osseointegration’ generally, communications relating to Mr Grant’s and the specified persons’ experiences of osseointegration with Dr Al Muderis; specifically advice, treatment, surgery, care, fees and charges and clinical outcomes. (That is, the subpoena as set aside in part calls for those documents.)

20    The category is further narrowed by setting aside the category insofar as it seeks communications from October 2022 to the date of the subpoena and confining the subpoena to evidence that a party to the communication has given or may give in the proceeding: R[48].

21    At R[70], Registrar Birchall concluded:

On the other hand, Mr Grant has obtained a meaningful partial setting aside of the category. The breadth of ‘relating to osseointegration’ has been appropriately pared back to patient experiences with osseointegration services provided by Dr Al Muderis. That the need for special access orders has largely fallen away is a result of that success. Communications sought apparently solely for credit purposes have been appropriately narrowed. Had I had no alternative but to allow or set aside the category as a whole, I would have set it aside.

22    I note that the list of 38 named individuals was pared back to 5.

23    It may be accepted, as Registrar Birchall observed at R[69], that the applicant did have a measure of success as the paragraph was not struck out as a whole. I note also the applicant did not succeed on those matters where the category was narrowed, and in relation to specific arguments: e.g. R[52]-[59] (the volume of the material), R[40] (aggravation), R[38]-[39] (public interest defence). I note, in respect of the argument on the public interest defence, the applicant, in oral submissions, relied on what occurred in the Russell hearing, without providing a copy of the transcript to Mr Grant or Registrar Birchall. It is not referred to in his written submissions. In so far as the applicant submitted that the discussion of Russell arose in an exchange between counsel for Dr Al Muderis and Registrar Birchall and it was Registrar Birchall that requested the transcript, the submission misses the point. Registrar Birchall recorded that the applicant referred to an excerpt from the transcript of the Russell hearing in support of his submission: R[31]. If reliance was placed on it by the applicant, the Registrar sought a copy not unreasonably. As a result, the transcript was provided after the hearing and an opportunity was given to both parties to address it in short written submissions, which Mr Grant did: R[37]. The applicant’s argument in relation to the transcript from Russell was unsuccessful: R[34]-[37].

24    Order 1 made by Registrar Birchall was as follows:

1.    Category 2 of the subpoena addressed to Mitchell Grant and issued on 9 October 2023 be set aside in part, as follows, to be read cumulatively:

(a)    the individuals listed at sub-paragraphs (i)-(xxxviii) of category 2 be excluded, except for (vi) Blythe Warland, (vii) Brennan Smith, (ix) Chris Bruha, (xv) Fred Hernandez and (xxxii) Rowena Mattiske (specified persons).

(b)    Documents evidencing communications relating to Dr Munjed Al Muderis from 1 October 2022 to date are excluded, except insofar as those communications also relate to the evidence that the parties to the particular communication have given or may give in these proceedings.

(c)    Documents evidencing communications relating to osseointegration are excluded, except for those communications relating to:

(i)    osseointegration advice, treatment, surgery or care provided by Dr Al Muderis (and his employees and agents) (Muderis osseointegration services) to Mr Grant or a specified person;

(ii)    fees and charges of Dr Al Muderis in relation to Muderis osseointegration services offered or provided to Mr Grant or a specified person; or

(iii)    clinical outcomes experienced by Mr Grant or a specified person following Muderis osseointegration services provided to them.

25    It was the applicant’s subpoena and that he drafted it in broad terms which led to Mr Grant’s application. I accept Mr Grant’s submission that he enjoyed meaningful success in narrowing the terms of category 2. That he sought more does not detract from that. Nor does the fact he did not succeed in the wholesale acceptance of all his submissions. The bottom line is, but for the breadth of the terms, there would have been no need for an application.

26    As to the applicant’s submission in relation to the ruling on the oppression argument run by Mr Grant, I note that Registrar Birchall was not satisfied category 2 was oppressive as originally drafted. Relevantly, Registrar Birchall correctly considered the argument on the basis of the narrowed scope of the category, and on that he was also not satisfied it was oppressive. I note Mr Grant’s written submissions before Registrar Birchall reflects that his argument in relation to oppression also included issues arising from the general terms in category 2, such as “osseointegration” and “related to”. As explained above, Mr Grant succeeded on that, with the category being narrowed in respect to those concepts: R[70].

27    Further, I do not accept the applicant’s submission that on paragraph 2 as narrowed “Dr Al Muderis beat Mr Grant’s offer by a significant margin”. That relates to a proposed amendment Mr Grant’s lawyers suggested to the applicant in correspondence prior to the hearing:

(2)    All documents evidencing communications with any of the following persons, relating to Dr Munjed Al Muderis or osseointegration, from May 2022 to date October 2022…

28    Mr Grant attempted to reach a compromise with the applicant to narrow the category prior to the hearing, but he was unsuccessful. I note that the suggested amendment included narrowing category 2 by confining the category to communications relating to the applicant from May to October 2022, with any communications after that being very limited. Mr Grant succeeded before the Registrar in similarly confining the timeframe for certain documents and limiting the category to communications relating to osseointegration that also concern Dr Al Muderis, in relation to specific topics. I note the applicant’s submission that Mr Grant failed to completely exclude communications relating to osseointegration, misreads the proposed amendment, which would capture communications in relation to Dr Al Muderis which relate to osseointegration. The narrowed order confined those communications further, to specific topics. In any event, the significance the applicant puts on the submission is unclear. It appears the applicant maintained his entitlement to the broad terms of the category, as originally drafted. The position was inflexible. Mr Grant has succeeded in meaningfully narrowing that.

29    Finally, I note for completeness that as to Mr Grant’s submission in respect to the late filing of evidence before the Registrar, the applicant submitted it is due to the late amending of the interlocutory application. However, the amendments only related to an access regime about how any confidential documents were to be handled and costs of the application. It is unclear how such limited topics delayed the filing of other evidence. In any event, I do not rely on this submission in reaching my conclusion.

30    I am persuaded that in the circumstances, Mr Grant’s costs of the hearing before Registrar Birchall should be paid by the applicant.

Third issue – hearing on 7 March 2024

31    As to the third issue, Mr Grant seeks costs of and incidental to the argument before me on 7 March 2024, in relation to the subpoena.

32    The Court has the power to make an order for costs of and incidental to an argument for a third party to the proceeding under s 43 of the FCA Act. In exercising the costs discretion under s 43, the Court must take into account any failure to comply with the duties to act consistently with the overarching purpose: FCA Act s 37N(4).

33    As is plain from the transcript of the hearing, it was listed at very short notice, on the application of the applicant, and without the agreement of the legal representatives of Mr Grant when they had expressly asked, in writing, for three days’ notice to be given. This was not brought to the Court’s attention by the applicant when he requested the matter be listed. Also, as evident from the transcript, I considered that the matters sought to be resolved, could have been (or at least narrowed) by further communication between the parties. Having the matter listed as urgently as the applicant did was unnecessary, or at best premature. I do not accept the applicant’s submission that both parties’ conduct contributed to the need for the hearing at that time.

34    As to the issues at the hearing. There were three. In relation to the first, Mr Grant produced further material.

35    As to the second, this issue was resolved by Dr Al Muderis’ lawyers agreeing to identify specific communications that they said were missing. That is, the applicant was seeking an order for Mr Grant to review all the communications. I did not agree that was appropriate and it was in that context where the applicant’s lawyer agreed to be more limited and specific. It was apparent at the hearing, that in correspondence prior to the hearing the applicant had indicated to Mr Grant’s lawyers that they would identify examples. At best, this issue was brought prematurely by the applicant. That list should have been provided to Mr Grant’s lawyers before there was any issue brought before the Court.

36    The third issue relating to privilege concerned a legitimate argument about compliance with the Practice Note. The issue was circumvented by Mr Grant’s lawyers providing an affidavit of Ms Olsen affirmed on 7 March 2024, which I considered appropriate to avoid any further issue, and to facilitate the matter progressing efficiently.

37    The applicant submitted that, in relation to this argument, the Court should bear in mind that it may be easily inferred that the legal representatives for both Dr Al Muderis and the respondents were working an extraordinary number of hours each day to keep the trial running, with very little sleep. Although it can be readily accepted the parties were working long hours during the course of the hearing, it is unclear how this is relevant to an assessment of costs. He also submitted that it was to be borne in mind that it became clear in Mr Grant’s cross-examination that he produced communications responsive to the subpoena in a needlessly unhelpful and obstructive way. However, leaving aside any issue of the accuracy of that assertion, it relies on conduct after this subpoena hearing. It cannot affect the applicant’s conduct in calling the matter where in relation to the second issue, he had not identified specific instances which he sought Mr Grant to provide further information.

38    An award of costs is not about punishment but compensation. The matter should not have been listed in the manner it was. That said, two of the three issues were resolved. The second issue is one that should have not been before the Court at that time. Having the matter listed in those circumstances was inconsistent with the principles in s 37M of the FCA Act. On the second issue, Mr Grant was successful as the applicant had to provide him with the list of identified matters. In those circumstances, I propose the applicant pay 50 percent of Mr Grant’s costs of this application.

Conclusion

39    In respect to each of the cost awards, in my view the costs should be as agreed or assessed. Although some general figures as to costs having been incurred are provided by Mr Grant, it is not suggested that is sufficient for the Court to make an order as to the quantum of any of the orders.

Associate:

Dated:    2 June 2026

SCHEDULE OF PARTIES