FEDERAL COURT OF AUSTRALIA
Nassif v Seven Network (Operations) Ltd (No 2) [2021] FCA 1390
File number: NSD 1184 of 2019 Judgment of: ABRAHAM J Date of judgment: 10 November 2021 Catchwords: COSTS – where respondents claim only liable for portion of the second applicant’s costs – where respondents’ defences unsuccessful – where second applicant awarded nominal damages Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113
Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750
Motium Pty Ltd v Arrow Electronics Australia Pty Limited [2011] WASCA 65
Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432
Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 13 Date of hearing: Determined on the papers Counsel for the Applicants: Ms S Chrysanthou SC with Ms J McKenzie Solicitor for the Applicants: Company Giles Counsel for the Respondents: Mr M Richardson Solicitor for the Respondents: Addisons ORDERS
NSD 1184 of 2019 BETWEEN: NISSERINE NASSIF
First Applicant
WIPING TEARS CHARITABLE ORGANISATION (ABN 88608997511)
Second Applicant
AND: SEVEN NETWORK (OPERATIONS) LTD (ACN 052845262)
First Respondent
CHANNEL SEVEN SYDNEY PTY LTD (ACN 000145246)
Second Respondent
BRYAN SEYMOUR
Third Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
10 NOVEMBER 2021
THE COURT ORDERS THAT:
1.There be a verdict for the first applicant in the amount of $109,397 (inclusive of pre-judgment interest).
2.There be a verdict for the second applicant in the amount of $546 (inclusive of pre-judgment interest).
3.The respondents pay eighty percent of the applicants’ costs to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
These reasons address the issue of the consequential orders to be made as a result of the substantive judgment in this matter, delivered on 22 October 2021: Nassif v Seven Network (Operations) Ltd [2021] FCA 1286.
The parties are in agreement as to the appropriate orders, save for the issue of costs.
That is, the orders including interest are to be:
(1)There be a verdict for the first applicant in the amount of $109,397 (inclusive of pre-judgment interest).
(2)There be a verdict for the second applicant in the amount of $546 (inclusive of pre-judgment interest).
I note that as a result of the judgment the respondents have removed the offending…
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- Case
- [2021] FCA 1390
- Decision Date
CaseChat Overview and Summary
The applicants argued that the primary purpose of a defamation claim is to vindicate the applicant's reputation and compensate for any damage done to their reputation and feelings. They submitted that a favourable judgment alone is a form of vindication, as established in Murphy v Nationwide News Pty Ltd (No 2). The applicants also contended that the proceeding relating to a mass media publication was properly brought in the Federal Court and that the second applicant's claim ought not to have been brought in a different jurisdiction. Furthermore, they submitted that the respondents' failure of every defence advanced warranted a higher percentage of costs to be awarded to the applicants.
The court considered Section 43 of the Federal Court of Australia Act 1976 (Cth) which confers jurisdiction on the Court to award costs. The court acknowledged that the award of costs is discretionary and that a successful party is entitled to an award of costs in its favour in the absence of special circumstances. The court also noted that if the primary purpose of bringing proceedings is to recover substantial damages, an award of nominal damages will ordinarily not entitle an applicant to the costs of the proceedings. However, the court found that the issues raised in the second applicant's case significantly overlapped with those of the first applicant, and the defences relied on by the respondents applied to both. The court concluded that the only additional matter in the second applicant's case was the issue of damages.
ORDERS:
1. There be a verdict for the first applicant in the amount of $109,397 (inclusive of pre-judgment interest).
2. There be a verdict for the second applicant in the amount of $546 (inclusive of pre-judgment interest).
3. The respondents pay eighty percent of the applicants’ costs to be agreed or assessed.
Orders
Orders of the court
1. There be a verdict for the first applicant in the amount of $109,397 (inclusive of pre-judgment interest).
2. There be a verdict for the second applicant in the amount of $546 (inclusive of pre-judgment interest).
3. The respondents pay eighty percent of the applicants’ costs to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
The applicants submitted that the primary purpose of a defamation claim is to vindicate the reputations of the applicant and to compensate for any damage done to reputation and hurt to feelings. A favourable judgment alone is a form of vindication: Murphy v Nationwide News Pty Ltd (No 2) [2021] FCA 432 at [18]. In the present case, vindication was important to nail the falsity of the imputations. The applicants submitted that this proceeding, relating to a mass media publication was properly brought in the Federal Court. It could not by sensibly suggested that the claim in respect of the second applicant ought to have been brought in a different jurisdiction to the claim for the first applicant. At the time the proceedings were commenced in the Federal Court, the second applicant could not know how it would fare economically in the years following the broadcast of the matter complained of, including in respect of the funds raised by the Blossom Ball held in late 2019. An order that the applicants be entitled only to 50% of their costs is at odds with the applicants overwhelming success on each point in dispute and the respondents’ failure of every defence advanced. Further, the percentage proposed is not at all reflective of the time properly associated with matters only relating to the second applicant.Consideration Section 43 of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction on the Court to award costs. Section 43 is a broad power, and the award of costs is discretionary: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]; Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 at [2]. That said, ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [11]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67], [134]; Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]–[7]. If the primary purpose of bringing proceedings is to recover substantial damages (as opposed to, for example, vindicating a legal right), an award of nominal damages will ordinarily not entitle an applicant to the costs of the proceedings: Motium Pty Ltd v Arrow Electronics Australia Pty Limited [2011] WASCA 65 at [10]; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 at [100]; Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 at [9]. The principles bearing on costs apportionments and the liability of partially successful applicants were summarised by White J in Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750 at [84]-[91]. I apply, inter alia, those principles without repeating that passage here. Although a nominal award was granted in respect to Wiping Tears, the issues raised in its case significantly overlapped with those of the first applicant. In particular, the defences relied on by the respondents applied to both, and as is apparent from the reasons for judgment, each was rejected. In practical terms the only additional matter in Wiping Tears’ case was the issue of damages. It may be accepted that at the time the proceedings were filed in this Court, the financial position of Wiping Tears that was to occur thereafter was not yet known. That said, it was known before the hearing commenced. Accepting that persisting with the claim did add to the length and substance of the hearing, it did not substantially do so. I note also that other relief was sought and vindication was, as it was submitted in the hearing, an important aspect.