Lehrmann v Network Ten Pty Limited (Reference Costs)

Case [2025] FCA 225

FEDERAL COURT OF AUSTRALIA

Lehrmann v Network Ten Pty Limited (Reference Costs) [2025] FCA 225

File number: NSD 103 of 2023
Judgment of: LEE J
Date of judgment: 19 March 2025
Catchwords:

COSTS – residuum of the dispute regarding the scope of indemnity required to be provided by Network Ten to Ms Wilkinson – where remaining dispute concerns costs of the reference conducted by a referee pursuant to an order of the Court – where the applicable legal principles concerning costs considered – where the reasonableness of the approach taken by each party to resolving the dispute as to costs of the reference considered – where each party should bear their own costs of the reference – where this result best promotes the overarching purpose and recognises neither party acted unreasonably – no order made as to costs

CONSTITUTIONAL LAW – judicial power of the Commonwealth – Constitution, Ch III – observations as to why a referee appointed under s 54A of the Federal Court of Australia Act 1976 (Cth) does not impermissibly exercise the judicial power of the Commonwealth

Legislation:

Constitution Ch III

Federal Court of Australia Act 1976 (Cth) Pt VB, ss 37M(3), 37N(4), 54A
Cases cited:

Bellamy’s Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638

CPB Contractors Pty Ltd and Another v Celsus Pty Ltd and Others (No 2) [2018] FCA 2112; (2018) 268 FCR 590

Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102

LFDB v SM (No 2) [2017] FCAFC 207

Multicon Engineering Pty Ltd v Federal Airports Corporation [1997] NSWCA 214; (1997) 47 NSWLR 631

Najjar v Haines (1991) 25 NSWLR 224

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 18
Date of hearing: 19 March 2025
Counsel for the first respondent:  Ms Z Graus with Mr T Senior
Solicitor for the first respondent:  Thomson Geer Lawyers
Counsel for the second respondent:  Mr D Klineberg
Solicitor for the second respondent: Gillis Delaney Lawyers

ORDERS

NSD 103 of 2023
BETWEEN:

BRUCE LEHRMANN

Applicant
AND:

NETWORK TEN PTY LIMITED

First Respondent

LISA WILKINSON

Second Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

19 MARCH 2025

THE COURT ORDERS THAT:

1.There be no order as to costs.

2.Ms Wilkinson pay Network Ten’s costs of today, and the quantum of those costs be taxed together with the other two extant costs orders as between the parties.

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


REASONS FOR JUDGMENT
(Delivered ex tempore)

LEE J:

A        INTRODUCTION

  1. This costs judgment resolves the residuum of the dispute between Network Ten Pty Limited (Network Ten) and Ms Wilkinson as to the scope of indemnity required to be provided by Network Ten to Ms Wilkinson. The substantive dispute (to the extent it can be described as…

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Details
AGLC
Lehrmann v Network Ten Pty Limited (Reference Costs) [2025] FCA 225
Case
[2025] FCA 225
Decision Date

CaseChat Overview and Summary

Lehrmann v Network Ten Pty Limited (Reference Costs) is a case that involved the determination of the scope of indemnity required to be provided by Network Ten to Ms Wilkinson, with a specific focus on the costs of a reference conducted by a referee under an order of the Court. The case was heard by the Federal Court of Australia. The legal issues that the court was required to decide primarily revolved around the costs incurred by the parties during the reference process and the reasonableness of their conduct in resolving the dispute.

The court examined the applicable legal principles concerning costs, including the role of the Uniform Law and the Court's implied power to control legal costs. It also considered the appropriateness of appointing a referee under section 54A of the Federal Court of Australia Act 1976 and whether such an appointment impermissibly exercised the judicial power of the Commonwealth. The court assessed the reasonableness of the approach taken by each party in resolving the dispute about the costs of the reference and concluded that neither party acted unreasonably.

The court's reasoning led to the conclusion that each party should bear their own costs of the reference, as this outcome best promotes the overarching purpose of the litigation process and recognises the reasonable conduct of both parties. The court decided not to make any order as to costs, except for Ms Wilkinson paying Network Ten's costs of the day. The quantum of those costs and the other two extant costs orders would be determined through the usual processes of taxation if the parties failed to reach a sensible resolution.

ORDERS:
1. There be no order as to costs.
2. Ms Wilkinson pay Network Ten’s costs of today, and the quantum of those costs be taxed together with the other two extant costs orders as between the parties.

Orders

Orders of the court

1. There be no order as to costs.

2. Ms Wilkinson pay Network Ten’s costs of today, and the quantum of those costs be taxed together with the other two extant costs orders as between the parties.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the cross-claim judgment (at [53] onwards) I explained that disputes about the reasonableness of costs incurred as between solicitor and client (including when a “non-associated third party payer” is involved) would be usually resolved through the costs assessment process provided under the Uniform Law. But with that said, the existence of such a regime is not inconsistent with this Court’s implied power to control legal costs incurred in relation to proceedings before the Court. Although, consistently with Pt VB of the FCA Act, I appointed a referee to report on quantum, I have not formed a view as to adoption (and now never will). I did not, and have not, expressed any views concerning distinguishing between reasonable and unreasonable costs incurred by Ms Wilkinson when, for the purposes of the cross-claim, it was sufficient that I found it was reasonable for Ms Wilkinson to have engaged separate legal representation. I am not certain the Report would have been adopted, at least in full, had the matter been litigated. D CONCLUSION In the above circumstances, given agreement has been reached at the heel of the hunt on quantum, and the conduct of the parties in reaching that consensus, it is difficult to see a clearer case where each party should bear their own costs. Although Ms Wilkinson was successful in her claim for an indemnity, this result as to this aspect of the dispute best promotes the overarching purpose and recognises neither party acted unreasonably. The only order I will make is that there be no order as to costs. Given this result, and after hearing from the parties, it follows that Network Ten should have its costs of today. The three extant costs orders as between Network Ten and Ms Wilkinson can be quantified through the usual processes of taxation in the event that common sense does not prevail and the parties fail to reach some sensible resolution.

Ratio Decidendi

Legal Principle Established

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