Murdoch v Private Media Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Murdoch v Private Media Pty Ltd (No 2) [2022] FCA 1607  

File number:

NSD 673 of 2022

Judgment of:

WIGNEY J

Date of judgment:

22 December 2022

Catchwords:

COSTS – interlocutory applications regarding strike out of pleadings – submissions on costs for interlocutory hearings – broad discretion of Court under s 43(2) of Federal Court of Australia Act 1976 (Cth) – general principle that costs follow the event – consideration of particular facts and circumstances justifying departure from general principle – interlocutory applications unsuccessful – order for costs in the cause

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43(2) Defamation Act 2005 (NSW) s 29A

Cases cited:

Murdoch v Private Media Pty Ltd [2022] FCA 1275

O’Keeffe Nominees Proprietary Limited v BP Australia (No 2) (1995) 55 FCR 591; [1995] FCA 109

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

18

Date of hearing:

30 November, 1 December 2022

Counsel for the Applicant:

Ms S Chrysanthou SC

Solicitor for the Applicant:

Mr J Churchill

Counsel for the Respondents:

Mr M Hodge KC and Ms C Amato

Solicitor for the Respondents:

Marque Lawyers

ORDERS

NSD 673 of 2022

BETWEEN:

LACHLAN KEITH MURDOCH

Applicant

AND:

PRIVATE MEDIA PTY LIMITED

First Respondent

BERNARD KEANE

Second Respondent

PETER FRAY

Third Respondent

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	22 DECEMBER 2022

THE COURT ORDERS THAT:

1.Costs for the interlocutory applications filed respectively by the applicant on 22 September 2022 and by the respondents on 5 October 2022 be costs in the cause.

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

REASONS FOR JUDGMENT

WIGNEY J:

1. On 21 October 2022, I dismissed interlocutory applications filed on behalf of the applicant in this proceeding, Mr Lachlan Murdoch, and the respondents, Private Media Pty Ltd, Mr Bernard Keane and Mr Peter Fray, who I will refer to collectively as Crikey: see Murdoch v Private Media Pty Ltd [2022] FCA 1275. I reserved judgment on the question of costs, but noted that my provisional view was that the costs of both unsuccessful applications should be costs in the cause: see Murdoch at [141]. I invited the parties to file written submissions if they sought some other costs order. Crikey did so, and submitted that a costs order should be made in its favour in respect of Mr Murdoch’s application. Mr Murdoch opposed that order and submitted that the appropriate order was costs in the cause.

2. One could perhaps be forgiven for thinking, when reading the parties’ respective written submissions, that the parties are occupying parallel universes.  Crikey submitted that it was wholly successful in respect of Mr Murdoch’s application and that costs should follow the event. It conceded that it should pay Mr Murdoch’s costs in respect of its own unsuccessful interlocutory application, but submitted that those costs would be infinitesimal given that most of the hearing was spent dealing…