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:
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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- Case
- [2024] FCA 377
- Decision Date
CaseChat Overview and Summary
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
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.