Greiss v Seven Network Operations Ltd (Costs)

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FEDERAL COURT OF AUSTRALIA

Greiss v Seven Network Operations Ltd (Costs) [2024] FCA 377

File number: NSD 292 of 2022
Judgment of: KATZMANN J
Date of judgment: 16 April 2024
Catchwords: COSTS – action for defamation – where applicant sued on three publications and succeeded on only one – where respondents allege applicant engaged in disentitling conduct – where award was less than $100,000 – whether respondents should pay applicant’s costs – whether applicant should be required to pay a substantial portion of respondents’ costs – whether costs should be reduced by a specified amount under r 40.08(a) of Federal Court Rules 2011 (Cth)
Legislation:

Acts Interpretation Act 1901 (Cth) s 25B

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25(1)(c)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5 Pt 2

Federal Court of Australia Act 1976 (Cth) ss 32AB(8A), 37M(3), 37N, 43

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)

Federal Court Rules 2011 (Cth) rr 1.40, 40.08

Defamation Act 2005 (NSW) s 40(1)

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4

Legislation Act 2001 (ACT) s 183
Cases cited:

Crosby v Kelly (2012) 203 FCR 451

El-Debel v Micheletto (Trustee) (No 2) [2021] FCAFC 146

Gray v Richards (2014) 252 CLR 601

Latoudis v Casey (1990) 170 CLR 534

Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61

Palmer v McGowan (No 6) [2022] FCA 927; 405 ALR 462

Rana v Google Inc (2017) 254 FCR 1

Rawley Pty Ltd v Bell (No 3) [2007] FCA 142

Russell v Australian Broadcasting Corporation (No 4) [2023] FCA 1279

Umoona Tjutagku Health Service Aboriginal Corporation v Walsh (2019) 268 FCR 401
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 49
Date of last submission/s: 12 April 2024
Date of hearing: Determined on the papers
Counsel for the Applicant Ms S T Chrysanthou SC with Mr N G Olson
Solicitor for the Applicant Antunes Lawyers
Counsel for the Respondents Mr M Richardson SC with Ms M Cowden
Solicitor for the Respondents Addisons

 

ORDERS

NSD 292 of 2022
BETWEEN:

MINA GREISS

Applicant
AND:

SEVEN NETWORK (OPERATIONS) LIMITED

First Respondent

LEONIE RYAN

Second Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

16 APRIL 2024

THE COURT ORDERS THAT:

1.The first respondent pay the applicant’s costs on a party and party basis to be calculated as if the proceedings had been brought in the District Court of New South Wales.

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


REASONS FOR JUDGMENT

KATZMANN J:

  1. In this proceeding Mina Greiss claimed to have been defamed in three publications and to be entitled to a substantial award of damages (including aggravated damages) for the harm they caused him.  The first matter complained of was an article appearing on the 7News website (the article), the second a Facebook post on the 7News…

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Details
Case
[2024] FCA 377
Decision Date

CaseChat Overview and Summary

The case before the court involved a defamation action brought by Mr. Greiss against Seven Network Operations Ltd and Leonie Ryan, a journalist. Mr. Greiss sought damages for defamatory publications related to allegations that he spat at or towards a rape victim. The court had previously awarded Mr. Greiss damages of $37,940 and dismissed his claim for aggravated damages. The primary legal issue before the court was the determination of costs associated with the litigation, given that Mr. Greiss had succeeded on only one of the three defamatory publications.

The court considered several factors in its decision, including the nature of the disentitling conduct by Mr. Greiss, the appropriate amount of costs to be awarded, and whether to reduce the respondents' costs under rule 40.08 of the Federal Court Rules 2011. The court noted that Mr. Greiss had made several offers of compromise, but these were rejected by the respondents, who only agreed to remove the publications as a gesture of goodwill. The court also highlighted that Ms. Ryan should not be required to pay Mr. Greiss's costs, as she was only a respondent in relation to one of the claims and was wholly successful in that regard.

The court concluded that, while there were merits in the respondents' position, particularly given that the damages awarded were modest and the outcome was not substantially different from what might have been achieved through compromise, Mr. Greiss was entitled to an award of costs. However, the court decided to reduce the costs by 75% to reflect the modest nature of the award and the circumstances of the case. The final order required the first respondent to pay Mr. Greiss's costs on a party and party basis, calculated as if the proceedings had been brought in the District Court of New South Wales.

Orders

Orders of the court

1. The first respondent pay the applicant’s costs on a party and party basis to be calculated as if the proceedings had been brought in the District Court of New South Wales.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to the second matter I awarded damages of $35,000 plus pre-judgment interest (a total of $37,940) and dismissed the claim for aggravated damages. The sum largely reflected my assessment of his claim for hurt feelings as I considered that he was entitled to no more than a nominal sum for damage to his reputation and as vindication. I reserved the question of costs and made orders for the filing of any evidence and submissions. See Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 (the liability judgment or LJ). Some familiarity with the liability judgment is assumed.The evidence Mr Greiss filed an affidavit from his solicitor, Margaret Antunes, attaching a raft of documents, some of which, such as the concerns notice and the response to it, were already in evidence. Among the documents were several offers of settlement, including an offer of compromise made on 20 October 2022 and a without prejudice offer from the respondents made on 8 March 2023. In a letter sent to the respondents on 9 August 2021 which was accompanied by a draft originating application and statement of claim, Mr Greiss offered to settle the dispute on the following terms:1.Immediate removal and deletion of the Article, Facebook post, Tweet and any other publication repeating the allegation that our client spat at or towards a rape victim;2.An unreserved apology and retraction to be immediately published on the 7news website (homepage for 21 days in a clear position in a size and font consistent with other news texts on that website), 7news Facebook account (never to be deleted) and Ryan’s Twitter account (never to be deleted) as follows:APOLOGY TO MINA GREISSIn May 2021 7news and Leonie Ryan published social media posts and an article alleging that Jarryd Hayne supporter Mina Greiss had spat at or towards the woman who accused Hayne of rape and stared her down outside of Court.These allegations were false and defamatory and are unreservedly retracted and withdrawn by 7news and Leonie Ryan - the video footage from the day shows that he did not do these things. We apologise to Mr Greiss for the hurt and harm that has been caused to him as a result of our false publications.The apology is to be accompanied by the photo of our client used in each of the publications.3. Pay our client’s reasonable costs of this dispute.4.Pay our client damages for the harm caused to him as a result of the publications:a. $125,000 within 14 days of acceptance of this offer; ORb.an amount to be determined by the Court (by accepting this offer now our client will accept payment of 15% less than any amount so determined). The respondents responded by rejecting the offer but, “as a gesture of goodwill” and without admissions, agreed to remove the publications. The offer of compromise made on 20 October 2022 was in these terms:Mr Greiss offers to compromise the proceeding as follows:1. Judgment in favour of [Mr Greiss] against the Respondents for $49,000.2.This offer is made in addition to [Mr Greiss’s] costs of the proceedings as agreed or taxed.3. This offer is made in accordance with Part 25 of the Federal Court Rules 2011.For avoidance of doubt, this offer will only be effective if accepted by all Respondents.This offer of compromise is open to be accepted for 14 days after service of this offer of compromise.The amount of the offer will be paid within 28 days after acceptance of this offer.This offer is made without prejudice except as to costs.

Ratio Decidendi

Legal Principle Established

If the Court were disposed to award costs to Mr Greiss, however, the respondents applied under r 40.08 to have his costs reduced by at least 75%. In support of that submission, the respondents contended that the proceedings could have been brought in the District Court of New South Wales, which at the time of filing had a monetary jurisdiction of $750,000, and, contrary to Mr Greiss’s submission, the FCFCoA has jurisdiction to hear defamation matters.Consideration Under no circumstances should Ms Ryan be required to pay Mr Greiss’s costs. She was only a respondent in relation to the claim arising from her tweet (the third matter complained of) and she was wholly successful. Ordinarily, this would mean that she would be entitled to an award of costs in her favour but no such application was made, presumably because her costs were (or were also) Seven’s costs. Further, I am unpersuaded by the submission that, had the contextual truth defence been raised earlier, Mr Greiss might have taken a different approach to the compromise of the proceedings. There is no evidence to support it and such evidence as there is, including Mr Greiss’s evidence at the trial, suggests it is unlikely. It is true that, in resisting the respondents’ application to amend their pleading to raise the additional defence, Mr Greiss submitted that he was prejudiced. But I found the submission to be unjustified (at LJ[82]–[83]). As the respondents put it, Mr Greiss failed to identify any prejudice to his forensic decision-making when given the opportunity to do so. It is also incorrect to say that the respondents only succeeded because of the contextual truth defence, as the facts upon which it was based were in any event relevant to mitigation of damages. Mr Greiss accepted that the award was low. Whether it can be described as substantial is debatable. A more apt description would be modest. There is much to be said in favour of the respondents’ position. As I mentioned earlier, there was no dispute that the pleaded imputations (or imputations no different in substance) were conveyed and that each was defamatory. In the case of the first matter complained of (the article) those imputations were that:(1)Mr Greiss engaged in the vile act of staring down and spitting towards Mr Hayne’s rape victim;(2)Mr Greiss stared down and spat in the direction of Mr Hayne’s rape victim;(3)Mr Greiss is despicable, in that he stared down and spat in the direction of Mr Hayne’s rape victim; and(4)Mr Greiss sought to harass and intimidate Mr Hayne’s rape victim by staring her down and spitting at her. In the case of the third matter (the Ryan tweet), they were imputations (2), (3) and (4) above. In the case of the second matter (the Facebook post), they were:(1)Mr Greiss spat at a rape victim outside court; and (2)Mr Greiss is despicable, in that he spat at a rape victim outside court. Broadly speaking, the issues in the trial were:(1)whether the defences of justification, honest opinion and/or contextual truth had been made out; and(2)if not:(i)the extent to which any of the matters relied upon to prove those defences mitigates damages;(ii) whether Mr Greiss had made out a case for aggravated damages; and(iii) the amount, if any, of damages that should be awarded.