Burston v Hanson (No 2)

Case [2023] FCA 113

FEDERAL COURT OF AUSTRALIA

Burston v Hanson (No 2) [2023] FCA 113

File number: NSD 652 of 2020
Judgment of: BROMWICH J
Date of judgment: 22 February 2023
Catchwords: COSTS – where question of costs arises from a dispute following verdict and judgment in favour of the applicant on one out of three publications sued upon – where respondent seeks no orders as to costs asserting equal level of success and that the applicant engaged in disentitling conduct in the proceeding – Held: no sufficient basis for departing from the ordinary rule; respondent to pay the applicant his costs on a party/party basis as agreed or assessed, including by way of a lump sum assessment.
Cases cited:

Burston v Hanson [2022] FCA 1235

Mawhinney v Australian Securities and Investments Commission (No 2) [2022] FCAFC 205

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 73
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 17
Date of hearing: 15 February 2023
Counsel for the Applicant: Mr N Olson
Solicitor for the Applicant: Mark O’Brien Legal
Counsel for the Respondent: Ms S Chrysanthou SC and Mr T Smartt
Solicitor for the Respondent: Danny Eid Lawyers

ORDERS

NSD 652 of 2020
BETWEEN:

BRIAN BURSTON

Applicant
AND:

PAULINE LEE HANSON

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

22 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The respondent pay to the applicant:

(a)the filing fee paid to the Supreme Court of Queensland;

(b)the costs and disbursements incurred from 17 March 2022 up to and including the costs of and incidental to the costs determination on a party/party basis.

2.If not agreed, costs to be assessed by a registrar, including, at the registrar’s discretion, by way of a lump sum assessment.

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 on costs in this defamation proceeding, following a verdict and judgment in favour of the applicant, Mr Brian Burston, on one out of three publications sued upon, each being a separate cause of action, and an award of damages of $250,000: see Burston v Hanson [2022] FCA 1235 (Liability Judgment or LJ).  These reasons assume general familiarity with the Liability Judgment, and in particular the conclusions reached about the pleaded imputations, and adopt the use of the same definitions.

  2. An imputation of either sexual harassment or sexual abuse towards Mr Burston’s staff was relied upon as having been conveyed for all three publications, with a common substratum of evidence relied upon to prove that these imputations were not true, or that they were substantially true.  The most serious of those imputations, sexual abuse, was found to have been conveyed in the Today Show television interview with the respondent, Ms Pauline Hanson, and not found to be justified as being substantially true or upon any other basis.  The defence of the other imputation found to have been…

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Burston v Hanson (No 2) [2023] FCA 113
Case
[2023] FCA 113
Decision Date

CaseChat Overview and Summary

The case of Burston v Hanson (No 2) involves an adjudication on the costs of a defamation proceeding following a verdict and judgment in favour of Mr Brian Burston on one out of three publications sued upon, with an award of damages of $250,000. The decision is a continuation of the proceedings from Burston v Hanson [2022] FCA 1235 (Liability Judgment). The court was required to determine the costs incurred by Mr Burston from 17 March 2022 and the filing fee paid to commence the proceedings in the Queensland Supreme Court, which engage the indemnity principle so as to make them amenable to a costs order. The ordinary rule is that a successful litigant will obtain the benefit of a compensating costs order, unless there is demonstrated misconduct relating to the litigation or the circumstances leading up to the litigation sufficient to displace that rule.

The respondent, Ms Pauline Hanson, submitted that there should be no order as to costs due to what was said to be equal success by the parties to the proceeding and an assertion that Mr Burston engaged in disentitling misconduct in bringing aspects of the case and in giving evidence. Mr Burston, on the other hand, submitted that the ordinary rule that costs follow the event properly applies, being his success in achieving a substantial verdict in his favour, notwithstanding that two causes of action failed, and disputes the reasons advanced for departing from that rule or that he engaged in any conduct of the kind that would disentitle him to a costs order. The court found that there was no sufficient basis for departing from the ordinary rule, and that the respondent should pay the applicant his costs on a party/party basis as agreed or assessed, including by way of a lump sum assessment.

The court ordered that the respondent pay to the applicant the filing fee paid to the Supreme Court of Queensland, the costs and disbursements incurred from 17 March 2022 up to and including the costs of and incidental to the costs determination on a party/party basis. If not agreed, costs to be assessed by a registrar, including, at the registrar’s discretion, by way of a lump sum assessment.

Orders

Orders of the court

1. The respondent pay to the applicant:

(a) the filing fee paid to the Supreme Court of Queensland;

(b) the costs and disbursements incurred from 17 March 2022 up to and including the costs of and incidental to the costs determination on a party/party basis.

2. If not agreed, costs to be assessed by a registrar, including, at the registrar’s discretion, by way of a lump sum assessment.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is an adjudication on costs in this defamation proceeding, following a verdict and judgment in favour of the applicant, Mr Brian Burston, on one out of three publications sued upon, each being a separate cause of action, and an award of damages of $250,000: see Burston v Hanson [2022] FCA 1235 (Liability Judgment or LJ). These reasons assume general familiarity with the Liability Judgment, and in particular the conclusions reached about the pleaded imputations, and adopt the use of the same definitions. An imputation of either sexual harassment or sexual abuse towards Mr Burston’s staff was relied upon as having been conveyed for all three publications, with a common substratum of evidence relied upon to prove that these imputations were not true, or that they were substantially true. The most serious of those imputations, sexual abuse, was found to have been conveyed in the Today Show television interview with the respondent, Ms Pauline Hanson, and not found to be justified as being substantially true or upon any other basis. The defence of the other imputation found to have been conveyed in the same television interview, of physical assault without provocation, also failed. At the outset, it is necessary to record that the common ground position is that only the costs incurred by Mr Burston from 17 March 2022 and the filing fee paid to commence the proceedings in the Queensland Supreme Court engage the indemnity principle so as to make them amenable to a costs order. The reason for that limitation is that up until that date, Mr Clive Palmer paid Mr Burston’s costs (but not the filing fee), without any asserted liability on the part of Mr Burston to reimburse Mr Palmer. The ordinary rule is that a successful litigant will obtain the benefit of a compensating costs order, unless there is demonstrated misconduct relating to the litigation or the circumstances leading up to the litigation sufficient to displace that rule in favour of a different outcome: see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 73 per McHugh J at [67]-[70]. Ms Hanson submits that there should be no order as to costs, due to what is said to be equal success by the parties to the proceeding and an assertion that Mr Burston engaged in disentitling misconduct in bringing aspects of the case and in giving evidence. Mr Burston submits that the ordinary rule that costs follow the event properly applies, being his success in achieving a substantial verdict in his favour, notwithstanding that two causes of action failed, and disputes the reasons advanced for departing from that rule or that he engaged in any conduct of the kind that would disentitle him to a costs order. Ms Hanson characterises the main factual issue in the case as being that Mr Burston had sexually harassed two of his staff, Ms Vairy and Ms Leach, which she had proved to be substantially true. She relies upon the finding at LJ[81], to be read in the context of LJ[78]-[80], that in Mr Burston’s desperation to have his perception and recollection of events accepted, he went beyond giving evidence of merely a different recollection of events and gave an account at key points that he must have known was “not correct”. That phrase was carefully and deliberately chosen and largely related to his allegation that Ms Leach had sexually propositioned him, which I rejected.

Ratio Decidendi

Legal Principle Established

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