Herron v HarperCollins Publishers Australia Pty Ltd (No 4)

The case of Herron v HarperCollins Publishers Australia Pty Ltd (No 4) involved an application for indemnity costs in the Federal Court of Australia. The application followed the principal judgment in Herron v HarperCollins Publishers Australia Pty Ltd (No 3) where the applicants' claims for defamation were dismissed. The respondents sought indemnity costs on the basis of the applicants' failure to raise a costs issue at the time of the principal judgment. The respondents argued that the costs order should be varied to reflect an indemnity basis, and they sought a fixed lump sum for their costs. The primary legal issue before the court was whether the respondents were entitled to indemnity costs, and if so, whether the lump sum costs order should be granted. The court considered the provisions of the Federal Court Rules 2011, particularly rules 39.05, 40.02, and the relevant practice notes on costs.

The court found that the respondents could only seek variation of the costs order if there was an error arising from an accidental slip or omission or if the other party consented. Given that the applicants had not raised any issue about costs and there was no suggestion that the court should consider any other form of costs order, the court concluded that there was no basis to vary the usual costs order. The court also noted that Dr Gill, one of the respondents, consented to the lump sum costs order provided he had an adequate opportunity to challenge certain costs. The court addressed the procedural aspects of assessing lump sum costs, indicating that the case was complex and that the parties should be granted reasonable extensions and leave to file additional material and submissions. The court ultimately dismissed the respondents' application for indemnity costs.

In summary, the Federal Court of Australia dismissed the application for indemnity costs, finding no basis to vary the usual costs order. The court acknowledged the respondents' entitlement to a lump sum costs order but did not grant the application for indemnity costs. The court provided procedural guidance for the assessment of lump sum costs and adjourned the interlocutory application for a case management hearing.