McVicker v Nine Digital Pty Ltd (No 2)

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.