Background
Colin Thurston, as administrator ad litem of William Thurston’s deceased estate, Cherokee Townsend and Joshua Renner appealed from the dismissal of defamation claims arising from television coverage of a 2020 rugby match. The broadcasts showed them being ejected from the stadium and included commentary that allegedly conveyed imputations that they were racist and had racially abused or vilified Indigenous Penrith Panthers player Brent Naden.
In its earlier decision, the Full Court held that the primary judge had erred in finding that Channel Nine’s broadcasts did not convey the pleaded imputations. It allowed Townsend’s and Renner’s appeals against Channel Nine and remitted their claims for determination of Channel Nine’s statutory qualified-privilege and justification defences and, if necessary, damages. William Thurston’s appeal seeking judgment and damages was barred by s 10 of the Defamation Act 2005 (NSW). Townsend and Renner then applied to correct what they characterised as a slip: the Full Court’s failure expressly to set aside the primary judge’s costs order in Channel Nine’s favour.
The Court’s Holding
The Full Court held that the application rested on a misconception. The primary judge has power on remittal to determine or redetermine the costs of the proceeding as a whole after the remitted issues are resolved. The Full Court therefore found it unnecessary to set aside or vary the original costs order in the manner Townsend and Renner proposed.
To remove any doubt, however, the Court invoked r 39.05(h) of the Federal Court Rules 2011 (Cth) and amended its earlier remittal order by adding “including any question of costs.” It otherwise dismissed the interlocutory application and made no order as to its costs.
Key Takeaways
- A trial judge receiving a proceeding on remittal may reconsider the costs of the proceeding as a whole after resolving the remitted issues.
- The Full Court did not immediately overturn Channel Nine’s existing costs order; it clarified that the primary judge may vary that order following the remitted hearing.
- The Court may use the slip-rule power in r 39.05(h) to clarify an order and eliminate doubt even when the proposed correction is not strictly necessary.
Why It Matters
The decision clarifies the allocation of responsibility for costs following a successful appeal and partial remittal. Where the ultimate result remains unresolved, the judge conducting the remitted hearing is ordinarily best placed to determine costs in light of the proceeding’s final outcome.
It also underscores that parties should observe the limits of leave to file submissions: the Court expressly disregarded portions of Townsend’s and Renner’s submissions that strayed beyond the authorised costs issue.