Clarke v Nationwide News Pty Ltd trading as The Sunday Times

Respondent's submissions 8 Counsel for the respondent rightly noted that there is authority for apportionment of costs, including the intellectual property cases Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 and Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 (Universal Music). In Universal Music, Tamberlin J awarded the applicants 80 per cent of their costs of the proceedings because the applicants succeeded on some claims but were unsuccessful on others. Counsel also mentioned parallels with defamation cases in relation to references to imputations and similar public interest defences. 9 The respondent submitted that a mathematical-type calculation should be applied in that only four in a series of comments was found to be offensive to the applicant, which should be translated into an appropriate costs order. It was argued that a large amount of time and effort was spent endeavouring to meet the applicant's case which included responding to amendments to the pleadings, which added further comments and imputations, as well as further affidavit evidence which referred to more comments. The respondent argued that a costs order should reflect the preparatory work that had to be undertaken in respect of responding to each and every comment, like comment and imputation. It said that it was only in the very late stage of the proceeding, and before the trial, that the applicant stated that the case was not being advanced on the imputations and in the end only identified a limited number of comments. The respondent said that every time the applicant added a comment there needed to be recourse to the imputation that was being relied upon, the article it was sourced from and then thought applied to the response.

Consideration 10 There are cases where proportional costs orders are made or orders are made benefitting the respective parties in respect of particular matters each has won or lost. This has occurred, for example in areas such as intellectual property disputation. Usually Courts are generally inclined to make a more general costs order. 11 I do not accept that because some of the comments complained about did not succeed, a mathematical calculation to the award of costs should be taken. I acknowledged the respondent's argument in relation to the level of its preparation in responding to the allegations and I accept that the case was narrowed when it came to trial. I speculate that the imputations that were pleaded were probably abandoned in favour of a more direct, ordinary-meaning approach to the words complained of. In the end the applicant simply pointed to imputations as possible meanings that could be drawn. This meant that some refined arguments did not need to be addressed. However, in my view, there was no major deviation from the essence of the case that was put. 12 The respondent submitted that a rough percentage deduction should be applied. I did not think that such an order is the appropriate way in which to deal with some wasted work in responding to the ultimately narrower case which was put. I was initially open to the approach that, at the very most, a small percentage reduction of the applicant's taxed costs might be ordered, given the abandonment of some of the pleaded case at the hearing but in the end did not consider that a reliable way of measuring the wasted work. 13 Senior Counsel for the applicant suggested another alternative being an order which might have been made in the interlocutory stages where the respondent could have any costs thrown away as a result of the amendments made. I was not attracted to that course as the respondent should have applied for an order in those terms at the time. 14 When considering the question of costs it is important to return to the facts of the case. There are some cases that lend themselves to a discrete analysis of points won and lost or a broader apportionment of costs. And there are other cases, like the present, where the points really are all in the "melting pot" and while the successful party may lose some and win others, the reality is that it was the entirety of the matter that was in dispute. In a case such as this, if a party makes out the discrimination alleged in respect of a number of important matters, it is difficult to unbundle the points won from any of those which did not succeed. In the result, I consider the applicant should have its costs for this reason, but not for the amendments made to the pleadings raising points which were not pursued.

Orders 15 The Court declares and orders: 1. The Court declares that the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) by publishing comments offensive to the applicant by reason of the aboriginal race of the applicant which were not published reasonably or in objective good faith being comments 108 of 114, 66 of 114, 29 of 114 and 96 of 179 referred to in the judgment in this proceeding delivered 27 March 2012. 2. The Court orders the respondent forthwith to remove the contravening publications from its perthnow.com.au website and any other sites maintained by it. 3. The Court orders that the respondent pay damages by way of compensation to the applicant for the offence, insult and humiliation she has suffered in respect of the contravening acts in the sum of $15,624 (inclusive of prejudgment interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth)). 4. The respondent pay the applicant's costs of the proceeding to be taxed, if not agreed, but not including the two amendments made to the statement of claim prior to the hearing. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.