Network Ten Pty Ltd v TX Australia Pty Ltd (No 2)

Network Ten Pty Ltd (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against orders made by the primary judge concerning the costs of proceedings against TX Australia Pty Ltd and others (the respondents). The dispute arose from earlier proceedings where the appellant had been largely unsuccessful.

The primary legal issues before the Court of Appeal were whether the general rule that costs follow the event should be departed from, and if so, how costs should be apportioned. Specifically, the court considered whether the issues on which the appellant was unsuccessful were so dominant or separable from the issues on which it was successful as to warrant a departure from the usual order. The court also considered the basis upon which costs should be quantified, including the possibility of an indemnity basis.

The Court of Appeal reasoned that while the appellant had been unsuccessful on most of the substantive issues, it had achieved some success. The court determined that the issues on which the appellant failed were not so clearly dominant or separable as to justify a complete departure from the general rule. Accordingly, the court ordered that the respondents pay the appellant's costs of the appeal and 50% of the appellant's costs in the Court below, reflecting a partial success for the appellant in the appeal and a mixed outcome in the primary proceedings.