Hayson v The Age Company Pty Ltd (No 3)

In the case of Hayson v The Age Company Pty Ltd (No 3), the court addressed competing applications for indemnity costs arising from a defamation proceeding. The applicant, who had alleged defamation by an article published in The Age, successfully established that two of the five imputations were made out, but failed to do so for the remaining three. The court awarded the applicant $55,689 in damages and costs. The applicant and the respondents had made numerous settlement offers, with the court finding the applicant’s second offer to settle not reasonable, and the respondents' rejection of the offer not unreasonable. The court also considered whether certain provisions of the Defamation Act 2005 (NSW) could be "picked up" by the Commonwealth under the Judiciary Act 1903 (Cth) and whether this would render them inconsistent with the Federal Court of Australia Act 1976 (Cth). The court found that such "picking up" did not result in inconsistency under the Australian Constitution s 109.

The legal issues in this case included whether the provisions of the Defamation Act 2005 (NSW) could be adopted by the Commonwealth as surrogate legislation under s 79 of the Judiciary Act 1903 (Cth) and whether such adoption would create an inconsistency with the Federal Court of Australia Act 1976 (Cth) under s 109 of the Australian Constitution. Additionally, the court had to determine the appropriate allocation of costs between the parties, considering the offers to settle and their reasonableness. The court found that the Defamation Act provisions could be "picked up" without inconsistency and assessed the costs applications based on the evidence and circumstances of the case. The court ruled that the respondents were to pay the applicant’s costs on the usual basis, including the costs of the competing costs applications.

The court’s reasoning was that the Defamation Act provisions could be "picked up" by the Commonwealth without creating inconsistency with federal legislation, as per the Australian Constitution s 109. The court found that the applicant’s second offer to settle was not reasonable, and the respondents' rejection of the offer was not unreasonable. Consequently, the court ordered that the respondents pay the applicant’s costs of the proceeding on the usual basis, encompassing the costs already awarded and the costs of the competing costs applications. This decision ensured that the applicant was fairly compensated for the defamation established by the conceded imputations, while also addressing the procedural fairness in the handling of settlement offers.