Hayson v The Age Company Pty Ltd (No 3) [2020] FCA 1163

Hayson v The Age Company Pty Ltd (No 3) [2020] FCA 1163

Section 40 of the Defamation Act 2005 (NSW) is picked up as surrogate Commonwealth law and applies to the award of costs in this defamation proceeding in the Federal Court, as there is no statutory or constitutional inconsistency with s 43 of the Federal Court Act; however, neither the applicant's nor respondents' settlement offers were sufficiently reasonable or unreasonably refused or rejected to warrant indemnity costs. Costs should follow the event on the usual basis.

Parties
Applicant: Edward Hayson; First Respondent: The Age Company Pty Ltd ACN 004 262 702; Second Respondent: Kate McClymont
Jurisdiction
Australia
Judgment Date
14 August 2020
Procedural Posture
Defamation / Post Trial Costs Determination
Outcome
Respondents to pay applicant's costs of the proceeding on the usual basis.
Legal Topics
Costs in Defamation Proceedings, Offers of Settlement, Indemnity Costs, Federal and State Law Interaction, Surrogate Commonwealth Law
Defamation Civil Procedure Constitutional Law Costs in Defamation Proceedings Offers of Settlement Indemnity Costs Federal and State Law Interaction Surrogate Commonwealth Law

Case Brief

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Parties

Edward Hayson

Applicant

The Age Company Pty Ltd ACN 004 262 702

First Respondent

Kate McClymont

Second Respondent

Procedural Posture

Defamation / Post Trial Costs Determination

Legal Issues

  1. 1 Whether s 40 of the Defamation Act 2005 (NSW) applies to Federal Court proceedings as surrogate Commonwealth law under s 79 of the Judiciary Act 1903 (Cth)
  2. 2 Whether there is inconsistency between Defamation Act 2005 (NSW) s 40 and Federal Court of Australia Act 1976 (Cth) s 43
  3. 3 Whether any party is entitled to indemnity costs based on the parties' reasonable or unreasonable rejection or making of settlement offers

Ratio Decidendi

Section 40 of the Defamation Act 2005 (NSW) is picked up as surrogate Commonwealth law and applies to the award of costs in this defamation proceeding in the Federal Court, as there is no statutory or constitutional inconsistency with s 43 of the Federal Court Act; however, neither the applicant's nor respondents' settlement offers were sufficiently reasonable or unreasonably refused or rejected to warrant indemnity costs. Costs should follow the event on the usual basis.

Court Disposition

Respondents to pay applicant's costs of the proceeding on the usual basis.

Orders

  • The respondents pay the applicant's costs of the proceeding, to be assessed on the usual basis, including the costs already awarded on 8 February 2019 and on 17 May 2019, and the costs of the competing costs applications.