Herron v HarperCollins Publishers Australia Pty Ltd (No 4) [2021] FCA 1021

Herron v HarperCollins Publishers Australia Pty Ltd (No 4) [2021] FCA 1021

Indemnity costs were refused because it could not reasonably be concluded that from 28 February 2020 the applicants' claims were hopeless and doomed to fail. The respondents bore the onus on their truth defence and had to admit and prove substantial evidence, cross-examine effectively and overcome litigation uncertainties; their comprehensive success in the principal judgment did not retrospectively justify indemnity costs. The lump sum costs assessment was allowed because Dr Gill consented to it on the basis that the Costs Practice Note procedure would permit him to contest disputed costs.

Jurisdiction
Australia
Judgment Date
26 August 2021
Procedural Posture
Costs Application Following Dismissal of Defamation Proceedings / Interlocutory Application for Indemnity Costs and Lump Sum Costs
Outcome
The interlocutory application was dismissed to the extent it sought indemnity costs; lump sum assessment and set-off of costs were ordered in NSD 1621 of 2017; the NSD 1620 of 2017 application was adjourned with leave to join the estate of the late John Herron.
Legal Topics
['indemnity Costs' 'lump Sum Costs' 'variation or Setting Aside of Entered Costs Orders' 'accidental Slip or Omission' 'defence of Truth']
['costs' 'defamation'] ['indemnity Costs' 'lump Sum Costs' 'variation or Setting Aside of Entered Costs Orders' 'accidental Slip or Omission' 'defence of Truth']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Defamation Proceedings / Interlocutory Application for Indemnity Costs and Lump Sum Costs

Legal Issues

  1. 1 ["Whether order 2 made on 25 November 2020 should be vacated or varied to require the applicants to pay the respondents' costs on an indemnity basis in part or whole." "Whether r 39.05(h) of the Federal Court Rules 2011 (Cth) was engaged by the respondents' lawyers overlooking the capacity to apply for indemnity costs before judgment." "Whether the applicants' claims were hopeless and doomed to fail from 28 February 2020 so as to warrant indemnity costs." "Whether the respondents' costs and other outstanding costs should be assessed in a fixed lump sum and set off."]

Ratio Decidendi

Indemnity costs were refused because it could not reasonably be concluded that from 28 February 2020 the applicants' claims were hopeless and doomed to fail. The respondents bore the onus on their truth defence and had to admit and prove substantial evidence, cross-examine effectively and overcome litigation uncertainties; their comprehensive success in the principal judgment did not retrospectively justify indemnity costs. The lump sum costs assessment was allowed because Dr Gill consented to it on the basis that the Costs Practice Note procedure would permit him to contest disputed costs.

Court Disposition

The interlocutory application was dismissed to the extent it sought indemnity costs; lump sum assessment and set-off of costs were ordered in NSD 1621 of 2017; the NSD 1620 of 2017 application was adjourned with leave to join the estate of the late John Herron.

Orders

  • ['NSD 1621 of 2017: The costs the subject of order 2 made on 25 November 2020 be assessed in a fixed lump sum.' 'NSD 1621 of 2017: All other outstanding orders for costs in the proceeding be assessed in a fixed lump sum.' 'NSD 1621 of 2017: The interlocutory application filed on 19 February 2021 otherwise be...