Nine Network Australia Pty Ltd & Ors v Wagner & Ors

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.