TCN Channel Nine Pty Limited v Network Ten Pty Limited (No 3)

[2005] FCAFC 194

FEDERAL COURT OF AUSTRALIA

TCN Channel Nine Pty Limited v Network Ten Pty Limited (No 3)
[2005] FCAFC 194

PRACTICE AND PROCEDURE – costs – appeal – exercise of discretion

Ritter v Godfrey [1920] 2 KB 47 cited

TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED AND GENERAL TELEVISION CORPORATION PTY LIMITED v NETWORK TEN PTY LIMITED
NSD 571 of 2004

SUNDBERG, FINKELSTEIN & HELY JJ
8 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 571 of 2004

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED AND GENERAL TELEVISION CORPORATION PTY LIMITED Appellants
AND:	NETWORK TEN PTY LIMITED Respondent
JUDGES:	SUNDBERG, FINKELSTEIN & HELY JJ
DATE OF ORDER:	8 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent pay two thirds of the appellants’ costs of the proceeding at first instance.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 571 of 2004

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED AND GENERAL TELEVISION CORPORATION PTY LIMITED Appellants
AND:	NETWORK TEN PTY LIMITED Respondent

JUDGES:	SUNDBERG, FINKELSTEIN & HELY JJ
DATE:	8 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The only issue that remains outstanding in this appeal is that of costs.  When we handed down our reasons we said that the appropriate order for the costs of the appeal was that Network Ten Pty Limited, the losing party, should pay two thirds of the appellants’ costs.  Later we invited submissions on the costs of the trial.  In its submissions on the trial costs, Ten took the opportunity to take up the question of costs of the appeal. 

2. The purpose of costs is as an indemnity to the successful party in litigation.  Accordingly the settled practice is that costs follow the event.  But the practice is not absolute.  In appropriate circumstances the successful party can be deprived of some or all of his costs.  He may even be ordered to pay all or part of the costs of the unsuccessful party.  The authorities that support these propositions are so well-known they require no citation. 

3. The circumstances in which a successful party may be deprived of his costs are too various to be classified, although some of the recognised grounds are mentioned in Ritter v Godfrey [1920] 2 KB 47 at 60-61. Here the factor that motivated us to award the appellants only two thirds of the costs of the appeal (a decision we do not intend to reverse) was that the appellants were not wholly successful in all of their claims, making it both just and appropriate to deprive them of some of their costs. A rough and ready approach resulted in the two thirds costs order. We think that the costs of the trial should be apportioned in the same way, and for the same reason.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             8 September 2005

Counsel for the Appellants:	Mr A J L Bannon SC with Mr D T Kell
Solicitor for the Appellants:	Gilbert & Tobin
Counsel for the Respondent:	Mr J M Ireland QC with Mr R Cobden and Mr C Dimitriadis
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Judgment:	8 September 2005