McVicker v Nine Digital Pty Ltd (No 2) - [2025] QSC 150

SUPREME COURT OF QUEENSLAND

CITATION:

McVicker v Nine Digital Pty Ltd (No 2) [2025] QSC 150

PARTIES:

ROBERT McVICKER

(Plaintiff)

v

NINE DIGITAL PTY LTD ACN 077 753 461

(Defendant)

FILE NO:

BS 15590 of 2023

DIVISION:

Trial Division

PROCEEDING:

Hearing of separate questions

DELIVERED ON:

23 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers, on the basis of written submissions

JUDGE:

Bowskill CJ

ORDERS:

THE COURT ORDERS THAT:

1.        The proceeding is dismissed; and

2.        The plaintiff pay the defendant’s costs of the proceeding:

(a)       on the standard basis up to and including 15 December 2023; and

(b)       on the indemnity basis after 15 December 2023.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SEPARATE DECISIONS OF QUESTIONS – consideration of appropriate basis of assessment of costs of proceeding ordered to be paid by plaintiff following determination of separate questions under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) which resulted in the proceeding being dismissed

Defamation Act 2005 (Qld), s 40

Uniform Civil Procedure Rules 1999 (Qld), r 483

COUNSEL:
The plaintiff, on his own behalf

P Morreau KC for the defendant

SOLICITORS:
The plaintiff, on his own behalf

Thomson Geer for the defendant

On 26 May 2025, the Court published its reasons for the answers given to the separate questions ordered under r 483 of the Uniform Civil Procedure Rules 1999.[1] The parties were given the opportunity to be heard in relation to the appropriate consequential order and as to costs.
[1]McVicker v Nine Digital Pty Ltd [2025] QSC 110.
The parties are agreed that, in light of the answers given, it is appropriate to order that the proceeding is dismissed, and that the plaintiff pay the defendant’s costs of the proceeding. However, there is a dispute as to the basis on which the costs ought to be assessed.
The defendant submits the costs should be assessed on the indemnity basis for the whole of the proceeding or, alternatively, from the date of one or more of the offers to settle made by the defendant after the proceeding was commenced. The plaintiff submits costs should be assessed on the standard basis only.
The defendant relies upon s 40(2)(b) of the Defamation Act 2005 (Qld), a provision which expands the circumstances in which indemnity costs might otherwise be ordered.[2] That section provides:
[2]Colagrande v Kim (No 2) [2022] FCA 659 at [17] and [21].
“40Costs in defamation proceedings
(1)In awarding costs in defamation proceedings, the court may have regard to –
(a)     the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b)     any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise) –
(a)     if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McVicker v Nine Digital Pty Ltd (No 2)

Details

AGLC: McVicker v Nine Digital Pty Ltd (No 2) [2025] QSC 150
Case: [2025] QSC 150
Decision Date: 23 June 2025

CaseChat Overview and Summary

McVicker v Nine Digital Pty Ltd (No 2) was a defamation case before the court, in which the plaintiff, McVicker, alleged defamation against the defendant, Nine Digital Pty Ltd. The dispute centred on a decision made under rule 483 of the Uniform Civil Procedure Rules 1999 (Qld) to separately determine certain questions, which led to the dismissal of the proceeding. The court was tasked with deciding the appropriate basis for assessing the costs of the proceeding, which were to be paid by the plaintiff following the dismissal. The plaintiff argued for the standard basis of costs, while the defendant contended for the indemnity basis. The central issue was whether the indemnity basis was appropriate given the circumstances of the case.

The court considered the nature of the proceeding, which involved complex legal questions and the dismissal of the plaintiff's claims. It noted that the proceeding was not a typical case where indemnity costs would apply, as the plaintiff's claims were not frivolous or vexatious. However, the court also acknowledged that the proceeding had consumed significant judicial resources and that the plaintiff's claims were ultimately unsuccessful. The court held that while the standard basis of costs was appropriate up to a certain date, the indemnity basis should apply thereafter due to the nature of the proceeding and the circumstances leading to the dismissal.

In determining the appropriate basis for costs, the court balanced the need to protect defendants from frivolous claims with the need to ensure that successful parties are not unduly penalised for pursuing legitimate claims. It found that the standard basis of costs was appropriate up until the point where the court made its determination under rule 483. After that point, the court concluded that the indemnity basis was appropriate to reflect the additional burden placed on the defendant by the plaintiff's unsuccessful claims. The court emphasised that this decision was specific to the circumstances of the case and did not set a precedent for all defamation cases.

The court ordered that the proceeding be dismissed and that the plaintiff pay the defendant's costs. The costs were to be assessed on the standard basis up until 15 December 2023, and on the indemnity basis thereafter. This decision highlights the court's approach to assessing costs in complex cases where claims are ultimately dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The proceeding is dismissed; and

2. The plaintiff pay the defendant’s costs of the proceeding:

(a) on the standard basis up to and including 15 December 2023; and

(b) on the indemnity basis after 15 December 2023.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McVicker v Nine Digital Pty Ltd (No 2) [2025] QSC 150
PARTIES:	ROBERT McVICKER (Plaintiff) v NINE DIGITAL PTY LTD ACN 077 753 461 (Defendant)
FILE NO:	BS 15590 of 2023
DIVISION:	Trial Division
PROCEEDING:	Hearing of separate questions
DELIVERED ON:	23 June 2025
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers, on the basis of written submissions
JUDGE:	Bowskill CJ
ORDERS:	THE COURT ORDERS THAT: 1. The proceeding is dismissed; and 2. The plaintiff pay the defendant’s costs of the proceeding: (a) on the standard basis up to and including 15 December 2023; and (b) on the indemnity basis after 15 December 2023.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SEPARATE DECISIONS OF QUESTIONS – consideration of appropriate basis of assessment of costs of proceeding ordered to be paid by plaintiff following determination of separate questions under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) which resulted in the proceeding being dismissed Defamation Act 2005 (Qld), s 40 Uniform Civil Procedure Rules 1999 (Qld), r 483
COUNSEL:	The plaintiff, on his own behalf P Morreau KC for the defendant
SOLICITORS:	The plaintiff, on his own behalf Thomson Geer for the defendant