Murdoch v Private Media Pty Ltd (No 2)

Murdoch, as the plaintiff, filed an action against Private Media, the defendant, in the Federal Court of Australia, raising issues pertaining to privacy and defamation. The case involves a request to strike out certain pleadings made by both parties during interlocutory stages of the proceedings. The plaintiff sought to strike out particular parts of the defendant's defence, while the defendant made a counter application to strike out specific parts of the plaintiff's claim. The court was tasked with determining whether these applications should be successful and, if not, whether the unsuccessful party should bear the costs of the interlocutory hearings.

The legal issues before the court centred around the principles governing costs in interlocutory applications and the exercise of the court's discretion under section 43(2) of the Federal Court of Australia Act 1976. The court needed to consider whether the general principle that costs follow the event should apply, and if not, what specific facts and circumstances justified a departure from this principle. The court also had to evaluate the merits of the applications themselves, which were ultimately dismissed.

The court concluded that the general principle of costs following the event should apply, and since both interlocutory applications were unsuccessful, the unsuccessful party should bear the costs. The court noted that both parties had made submissions on the issue of costs, but the primary consideration was the outcome of the applications. The court found that the applications were without merit and therefore the unsuccessful party should bear the costs. The court's decision was grounded in the statutory framework and the well-established principles of costs in interlocutory applications.

The court ordered that the costs for the interlocutory applications filed by the plaintiff on 22 September 2022 and by the defendant on 5 October 2022 be costs in the cause. The entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.