Lehrmann v Network Ten Pty Ltd (Costs)

Lehrmann v Network Ten Pty Ltd (Costs) involves the applicant, Mr Bruce Lehrmann, who unsuccessfully sought damages for defamation against the respondents, Network Ten Pty Ltd and Ms Lisa Wilkinson. The respondents successfully defended the claim on the basis of statutory qualified privilege. The dispute now focuses on the allocation of costs between the parties. The primary issue before the court was to determine the appropriate costs order to be made between the parties, considering the unsuccessful nature of the applicant's claim and the conduct of the parties during the litigation. The court was required to assess the conduct of the respondents in the exercise of its discretion as to costs, particularly in light of their conduct relating to the publication of the defamatory content and the settlement negotiations. The court noted the lack of a real winner in the litigation and the conduct of the parties, which did not align with the overarching purpose of civil litigation.

The court found that the conduct of Network Ten in relation to the publication of the defamatory content was unreasonable and did not sufficiently sever their entitlement to costs for the statutory qualified privilege defence. The court ruled that Network Ten was entitled to costs on the indemnity basis for any other costs of or incidental to the proceeding and on the ordinary basis for the costs incurred in relation to the statutory qualified privilege defence. The same considerations applied to Ms Wilkinson. The court also made specific orders regarding the non-recoverable costs for certain affidavits. The quantification of the costs payable was referred to a referee for inquiry and report.

The court ordered that the applicant pay the respondents’ costs of the proceeding on the ordinary basis for the costs incurred in relation to the defence of statutory qualified privilege and on the indemnity basis for any other costs of or incidental to the proceeding. The court also specified certain affidavits whose costs would not be recoverable by the respondents against the applicant. The quantification of the costs was to be referred to a referee for inquiry and report, with the terms of the reference to be settled by the Court.