Greenwich v Latham (No 3)

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FEDERAL COURT OF AUSTRALIA

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

File number(s): NSD 475 of 2023
Judgment of: O’CALLAGHAN J
Date of judgment: 4 April 2025
Catchwords: COSTS – Defamation – costs awarded to applicant but not on an indemnity basis
Legislation:

Defamation Act 2005 (NSW) s 40

Federal Court of Australia Act 1976 (Cth) s 43

Judiciary Act 1903 (Cth) s 79
Cases cited:

CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173

Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40

Greenwich v Latham [2024] FCA 1050

Greenwich v Latham (No 2) [2025] FCA 131

Hayson v The Age Company Pty Ltd (No 3) (2020) 280 FCR 139

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127

Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511; (1986) ATPR 40-748

Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432

Palmer v McGowan (No 6) [2022] FCA 927; (2022) 405 ALR 462
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 47
Date of hearing: 27 March 2025
Counsel for the Applicant: M J Collins AM KC with S Jeliba
Solicitor for the Applicant: Dowson Turco Lawyers
Counsel for the Respondent: G O’L Reynolds SC with G R Rubagotti
Solicitor for the Respondent: Zali Burrows at Law

ORDERS

NSD 475 of 2023
BETWEEN:

ALEXANDER GREENWICH

Applicant
AND:

MARK WILLIAM LATHAM

Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

4 APRIL 2025

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.

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Details
Case
[2025] FCA 312
Decision Date

CaseChat Overview and Summary

In Greenwich v Latham (No 3), Justice Perram addressed the final unresolved issue of costs in a defamation proceeding between Mr Greenwich, a member of the New South Wales Legislative Assembly, and Mr Latham, an independent member of the New South Wales Legislative Council. The dispute originated from two publications by Mr Latham, referred to as the "primary tweet" and the "DT quotes", which Mr Greenwich argued were defamatory. The court had previously ruled in favour of Mr Greenwich on some imputations, awarding him damages for non-economic loss and aggravated damages. The present decision focused on the application of costs between the parties, following the dismissal of Mr Greenwich's application for injunctive relief.

The court needed to determine the appropriate basis for awarding costs, considering the principles under the Federal Court Act 1976 (Cth) and the Defamation Act 2005 (NSW). The primary issue was whether the costs should be apportioned or awarded on a party-party basis. The court found that the application of either s 40 of the Defamation Act or s 43 of the Federal Court Act would result in the same outcome, allowing the court to proceed under the Federal Court Act's principles. The court also considered whether an apportionment of costs would be appropriate, taking into account the nature of the litigation and the conduct of the parties.

The court concluded that the principles in s 43 of the Federal Court Act provided a wide residual discretion, allowing the court to consider the interests of justice in determining the appropriate costs order. After considering the written and oral submissions, the court decided that the costs should be awarded to Mr Greenwich on a party-party basis. The court found that the litigation had been extensive and complex, but ultimately justified the award of full costs to Mr Greenwich. The reasoning was based on the significant effort and resources required to litigate the case, and the fact that Mr Greenwich had been successful on the main issues.

Accordingly, the court ordered that Mr Latham pay Mr Greenwich’s costs of the proceeding on a party-party basis, to be taxed in the absence of agreement. This decision emphasised the importance of considering the overall context and outcome of the litigation when determining costs in defamation cases.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

These reasons deal with the last remaining issue (namely, costs) following my judgment in Greenwich v Latham [2024] FCA 1050 (the primary judgment). 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”. 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. 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”. I found that imputation (i) was conveyed. I found that imputation (ii) was not conveyed. 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”. I found that neither imputation relating to the DT quotes was conveyed. I found that the first pleaded imputation relating to the primary tweet was defamatory of Mr Greenwich. 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. 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. 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. I subsequently heard an application by Mr Greenwich for injunctive relief, which I dismissed. See Greenwich v Latham (No 2) [2025] FCA 131. 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. 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? At the hearing, the parties dealt with the question of apportionment first, so I will do the same. 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.)

Ratio Decidendi

Legal Principle Established

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