Nine Network Australia Pty Ltd & Ors v Wagner & Ors - [2021] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84

PARTIES:

NINE NETWORK AUSTRALIA PTY LTD
ACN 008 685 407
(first appellant)
TCN CHANNEL NINE PTY LTD
ACN 001 549 560
(second appellant)
QUEENSLAND TELEVISION LIMITED
ACN 009 674 373
(third appellant)
WIN TELEVISION QLD PTY LTD
ACN 009 697 198
(fourth appellant)
NINEMSN PTY LTD
ACN 077 753 461
(fifth appellant)
NICHOLAS CHARLES CATER
(sixth appellant)
v
DENIS WAGNER
(first respondent)
JOHN WAGNER
(second respondent)
NEILL WAGNER
(third respondent)
JOE WAGNER
(fourth respondent)

FILE NO/S:

Appeal No 14259 of 2019
SC No 11789 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 284 (Applegarth J)

DELIVERED ON:

30 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and Mullins JJA and Jackson J

ORDER:

The respondents pay 25 per cent of the appellants’ costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the appellants succeeded on one of the six grounds of the appeal but failed on all other grounds – where the appellants’ success was on a substantial ground of contest in the appeal – where the appellants did not contend for that ground on a legally correct basis at trial – where the appellants submit that they succeeded in the appeal and the principle that costs follow the event ought to apply – where the respondents submit that the appellants’ limited success justifies departure from the general rule and the appellants should be ordered to pay the respondents’ costs of the appeal or, alternatively, 75 per cent of the respondents’ costs of the appeal – whether the ordinary principle that costs follow the event ought to apply – whether a proportionate order reflecting the relative successes of the parties on the appeal ought to be made

Civil Proceedings Act 2011 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 681(1), r 766(1)(d)

Allianz Australia Insurance Ltd v Swainson[2011] QCA 179, cited
Hamcor Pty Ltd v Marsh Pty Ltd[2013] QCA 395, cited
Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22, cited
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, cited
Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2)[2009] QCA 239, cited
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)[2021] QCA 39, cited

COUNSEL:

A T S Dawson SC, with S Mukerjea, for the appellants
P J McCafferty QC, with D Tay, for the respondents

SOLICITORS:

Thomson Geer for the appellants
Corrs Chambers Westgarth for the respondents

MORRISON JA: I have read the reasons of Jackson J and agree with those reasons and the order his Honour proposes.
MULLINS JA: I agree with Jackson J.
JACKSON J: Following the Court’s decision on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCA 84
Decision Date: 30 April 2021

CaseChat Overview and Summary

The case before the court involved Nine Network Australia Pty Ltd and others, as appellants, against Wagner and others, as respondents. The dispute originated from a lower court decision that was appealed on multiple grounds. The appeal was heard in the relevant appellate court, which had to decide whether the principle that costs follow the event should apply in light of the appellants' partial success. The appellants had succeeded on one of the six grounds of the appeal but failed on all other grounds. Their success was on a substantial ground of contest in the appeal, but they did not contend for that ground on a legally correct basis at trial. The appellants argued that they succeeded in the appeal and the principle that costs follow the event ought to apply. The respondents, however, argued that the appellants' limited success justifies departure from the general rule and that the appellants should be ordered to pay the respondents' costs of the appeal or, alternatively, 75 per cent of the respondents' costs of the appeal.

The court had to determine whether the ordinary principle that costs follow the event should apply and whether a proportionate order reflecting the relative successes of the parties on the appeal ought to be made. The court considered the nature of the appeal, the extent of the appellants' success, and the implications of the general principle that costs follow the event. It was noted that the appellants' success was on a substantial ground of contest, but their failure on the other grounds and the lack of a legally correct basis for their successful ground at trial were significant factors. The court balanced these considerations and concluded that while the appellants had succeeded on a substantial ground, their overall performance in the appeal warranted a departure from the strict application of the principle that costs follow the event.

The court decided that the respondents should pay 25 per cent of the appellants' costs of the appeal. This outcome reflected the appellants' success on a substantial ground but also took into account their limited overall success and the need for a proportionate costs order. The court's decision aimed to fairly allocate the costs of the appeal between the parties, considering both the general principle and the specific circumstances of the case.

Orders

Orders of the court

The respondents pay 25 per cent of the appellants’ costs of the appeal.

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

Full text does not contain this section.

CITATION:	Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84
PARTIES:	NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 (first appellant) TCN CHANNEL NINE PTY LTD ACN 001 549 560 (second appellant) QUEENSLAND TELEVISION LIMITED ACN 009 674 373 (third appellant) WIN TELEVISION QLD PTY LTD ACN 009 697 198 (fourth appellant) NINEMSN PTY LTD ACN 077 753 461 (fifth appellant) NICHOLAS CHARLES CATER (sixth appellant) v DENIS WAGNER (first respondent) JOHN WAGNER (second respondent) NEILL WAGNER (third respondent) JOE WAGNER (fourth respondent)
FILE NO/S:	Appeal No 14259 of 2019 SC No 11789 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 284 (Applegarth J)
DELIVERED ON:	30 April 2021
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Morrison and Mullins JJA and Jackson J
ORDER:	The respondents pay 25 per cent of the appellants’ costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the appellants succeeded on one of the six grounds of the appeal but failed on all other grounds – where the appellants’ success was on a substantial ground of contest in the appeal – where the appellants did not contend for that ground on a legally correct basis at trial – where the appellants submit that they succeeded in the appeal and the principle that costs follow the event ought to apply – where the respondents submit that the appellants’ limited success justifies departure from the general rule and the appellants should be ordered to pay the respondents’ costs of the appeal or, alternatively, 75 per cent of the respondents’ costs of the appeal – whether the ordinary principle that costs follow the event ought to apply – whether a proportionate order reflecting the relative successes of the parties on the appeal ought to be made Civil Proceedings Act 2011 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), r 681(1), r 766(1)(d) Allianz Australia Insurance Ltd v Swainson[2011] QCA 179, cited Hamcor Pty Ltd v Marsh Pty Ltd[2013] QCA 395, cited Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22, cited Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, cited Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2)[2009] QCA 239, cited Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)[2021] QCA 39, cited
COUNSEL:	A T S Dawson SC, with S Mukerjea, for the appellants P J McCafferty QC, with D Tay, for the respondents
SOLICITORS:	Thomson Geer for the appellants Corrs Chambers Westgarth for the respondents