Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION: Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2021] QCA 84

PARTIES: NINE NETWORK AUSTRALIA PTY LTD / ACN 008 685 407 / (first appellant) / TCN CHANNEL NINE PTY LTD / ACN 001 549 560 / (second appellant) / QUEENSLAND TELEVISION LIMITED / ACN 009 674 373 / (third appellant) / WIN TELEVISION QLD PTY LTD / ACN 009 697 198 / (fourth appellant) / NINEMSN PTY LTD / ACN 077 753 461 / (fifth appellant) / NICHOLAS CHARLES CATER / (sixth appellant) / v / DENIS WAGNER / (first respondent) / JOHN WAGNER / (second respondent) / NEILL WAGNER / (third respondent) / JOE WAGNER / (fourth respondent)

FILE NO/S: Appeal No 14259 of 2019 / SC No 11789 of 2015

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal – Further Order

ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 284 (Applegarth J)

DELIVERED ON: 30 April 2021

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Morrison and Mullins JJA and Jackson J

ORDER: The respondents pay 25 per cent of the appellants’ costs of the appeal.

CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the appellants succeeded on one of the six grounds of the appeal but failed on all other grounds – where the appellants’ success was on a substantial ground of contest in the appeal – where the appellants did not contend for that ground on a legally correct basis at trial – where the appellants submit that they succeeded in the appeal and the principle that costs follow the event ought to apply – where the respondents submit that the appellants’ limited success justifies departure from the general rule and 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 – whether the ordinary principle that costs follow the event ought to apply – whether a proportionate order reflecting the relative successes of the parties on the appeal ought to be made / Civil Proceedings Act 2011 (Qld), s 15 / Uniform Civil Procedure Rules 1999 (Qld), r 681(1), r 766(1)(d) / Allianz Australia Insurance Ltd v Swainson [2011] QCA 179, cited / Hamcor Pty Ltd v Marsh Pty Ltd [2013] QCA 395, cited / Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22, cited / Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, cited / Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239, cited / Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, cited

COUNSEL: A T S Dawson SC, with S Mukerjea, for the appellants / P J McCafferty QC, with D Tay, for the respondents

SOLICITORS: Thomson Geer for the appellants / Corrs Chambers Westgarth for the respondents

1. MORRISON JA: I have read the reasons of Jackson J and agree with those reasons and the order his Honour proposes.

2. MULLINS JA: I agree with Jackson J.

3. JACKSON J: Following the Court’s decision on the substantive appeal,¹ the parties made written submissions as to costs orders that should now be made.

4. Summarising, the appellants succeeded on one of the six grounds of the appeal, ground 4, that the judgments granted should be varied so that for the awards of damages made in respect of the same harm for indivisible loss, the judgments should not permit or should prevent double recovery.² On the other five grounds of appeal,³ the appellants were unsuccessful.⁴

5. The appellants submit that they succeeded in the appeal and the well-established principle that costs follow the event ought to apply, notwithstanding that they did not succeed on all grounds. They submit that there are no compelling reasons or special circumstances that warrant a departure from the ordinary principle that costs follow the event.

6. The appellants submit further that the primary contest on appeal was ground 4, on which they succeeded, and the grounds of appeal on which they did not succeed were subsidiary to ground 4, were fairly arguable and raised important matters of principle with respect to the assessment of damages in defamation proceedings.

7. Lastly, they submit that no substantial injustice would be occasioned by an award that the respondents pay the appellants’ costs of the appeal or an overwhelming portion of those costs.

8. The respondents submit that the appellants should be ordered to pay the respondents’ costs of the appeal.

9. The respondents submit that the appellants’ limited success is an obvious circumstance justifying departure from the general rule that costs follow the event. In any event, the respondents submit it is inaccurate to describe the appeal as a whole as the event in the present case because the appellants succeeded on only one of “four grounds” of the appeal. The respondents submit that, as a starting point, the appellants ought to pay at least 75 per cent of the respondents’ costs of the appeal.

10. Further, the respondents submit that an order should not be made that the respondents pay the appellants’ costs of the appeal on the ground of appeal on which the appellants succeeded because that success was on a point not argued before the primary judge. Accordingly, the respondents submit that the appellants should be ordered to pay the respondents’ costs of the appeal, including the ground of appeal on which the respondents were unsuccessful. Alternatively, the respondents submit the appellants should be ordered to pay 75 per cent of the respondents’ costs of the appeal.

“[I]t is just for a successful litigant, and perhaps a fortiori a successful appellant, to be able to recover [their] costs from someone.”⁸

12. It is not necessary to decide whether the costs that relate to separate grounds of appeal should be treated as separate events for the purpose of the analysis to order the costs of this appeal. None of the parties contend that an order for costs should be made on the basis of orders for different events. Decisions of this Court state the principles for an award of the costs of an appeal. It is sufficient to refer to three of them. In 2009, in Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2), it was said:

“Rule 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that costs of a proceeding are in the discretion of the Court but follow the event unless the Court orders otherwise. The rule which specifically relates to appeals is r 766(1)(d), which simply provides that the Court of Appeal ‘may make the order as to the whole or part of the costs of an appeal it considers appropriate’. Although r 766(1)(d) does not express the general principle under which a successful appellant is usually given costs in its favour, that general principle remains applicable. In Oshlack v Richmond River Council (1998) 193 CLR 72, which concerned a provision conferring a discretionary power to award costs in general terms, McHugh J explained why a successful party is usually given costs:

‘The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is granted in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [Latoudis (1990) 170 CLR 534 at 543, per Mason CJ: at 562–563, per Toohey J; at 566–567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.’”⁹

13. In 2013, in Hamcor Pty Ltd v Marsh Pty Ltd,¹⁰ it was said:

“The proposed costs order is consistent with the principle propounded in Alborn & Ors v Stephens & Ors, wherein Muir JA, with whom Holmes JA and Daubney J agreed, observed:

‘The usual rule is that the costs of a proceeding follow the event.

The ‘event’ is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to ‘the events or issues, if more than one, arising in the proceedings’. However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs. (citations omitted)’” (footnote omitted)

14. Recently, in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2), it was said:

“It is important to recognise, however, that it does not follow from the foregoing that the application of the general rule should usually lead to costs orders which reflect different results on separate events or issues. The Court is given a broad discretion and is specifically empowered to determine that some other order is more appropriate.

In practice, courts often take the approach of identifying heads of controversy or ‘units of litigation’ (rather than what might technically be regarded as issues on the pleadings) regarding success or failure on the head of controversy or unit of litigation as the criterion for awarding costs: see Thiess v TCN Channel 9 Pty Ltd (No 5) at 207–8 and Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168 at [1].

The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: Courtney v Chalfen [2021] QCA 25 at [5] . On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party’s failure: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd at [1] . On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding…”¹¹

15. As a matter of principle and practice, there is no difficulty in this Court making a broad assessment of relative responsibilities for the outcomes of an appeal, either in general or upon the grounds of appeal, in particular, so as to make proportionate orders reflecting relative success or successes on the appeal, or lack thereof.

16. In the present case, the appellants rightly submit that they were successful on a substantial ground of contest in the appeal. As well, it may be observed that the overall effect of the appellants’ success was to reduce the aggregate amount of the appellants’ several liabilities under the judgments appealed from by $800,000. Against that, the respondents rightly submit that in the Court below the appellants did not contend for that ground on a legally correct basis, although they sought a similar outcome on a legally incorrect basis, as explained in the reasons given in the substantive appeal.¹²

17. Further, the respondents submit correctly that the appellants failed on all other grounds by which they sought further reduction of the amounts of the judgments given against them by the Court after trial. To that extent, although the bulk of the time spent in oral argument on the hearing of the appeal and a significant question of complexity for the purposes of deciding the appeal may be attributed to the ground of appeal on which the appellants were successful, it was only a limited success and the judgments given at trial in the respondents’ favour were otherwise sustained.

18. In the result, I would order that the respondents pay 25 per cent of the appellants’ costs of the appeal.

Footnotes

1. Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221. ↩

2. Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221, [15]-[86]. ↩

3. Grounds five and six were argued and considered as a single ground. ↩

4. Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221, [87]-[135], [136]-[160], [161]-[174] and [175]-179]. ↩

5. Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(d). ↩

6. Uniform Civil Procedure Rules 1999 (Qld), r 681(1). ↩

7. Civil Proceedings Act 2011 (Qld), s 15. ↩

8. Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22, 39-40; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, [61]-[62]. ↩

9. [2009] QCA 239, [3]. Cited with approval in Allianz Australia Insurance Ltd v Swainson [2011] QCA 179, [5]. ↩

10. [2013] QCA 395, [7]. ↩

11. [2021] QCA 39, [14]-[16]. ↩

12. Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221, [23].