The history of plaintiffs who ‘win’ defamation actions but are more akin to a loser is littered with many examples.
The case of The Honourable Joseph Benedict Hockey v Fairfax Publications & Others will definitely be among them.
In a decision on the awarding of costs, Justice White of the Federal Court determined that Mr Hockey should pay the share of his own legal costs to the tune of 85 per cent.
To put it another way, Fairfax must pay only 15 per cent of his costs on top of the $200k damages previously awarded. When this is set against the overall costs that would have been incurred in a five-day hearing with one of Sydney’s leading silks, a second barrister and a barrage of top-flight lawyers, it’s not hard to see the Hockey finances are going to be horribly in the red after all the usual accounts are dealt with.
Normally, a win in a defamation action means there is an award in favour of the plaintiff’s costs. Or, as they say in business, “the costs follow the cause”. So what went wrong here?
In a nutshell, the claim was overly ambitious. Only three of the 15 publications he sued on were successful. One was a poster published by the SMH and the other two were tweets by The Age. It was the unsuccessful claim on the articles that led to the undoing of the costs claim. Due to the greater amount of legal argument going into the articles, the court held that Fairfax should benefit the most on this point.
As Justice White noted in his judgement:
“Had Mr Hockey sued only on the SMH poster and the two tweets of The Age, the proceedings would have been much more confined and, possibly, may not have involved a trial at all.”
No two defamation actions are ever the same when it comes to the facts being examined under the intense glare of legal analysis. However, what they do have in common are incredible and crippling legal costs that can devastate a plaintiff, even when they win.
The judge made reference to the action by Sir Leslie Thiess in his defamation action against Channel Nine in 1991. In that action Thiess was only partly successful in his claim and was awarded $55,000. However, with appeals, it’s been estimated the case cost the plaintiff in excess of $1.3 million.
Then there is the celebrated 19th-century defamation case (second only to Oscar Wilde’s in the same period) where the famous artist James McNeil Whistler (as in ‘Whistler’s Mother’) took action against the art critic, James Ruskin. Whistler sued over Ruskin’s assessment that one of his paintings was like “flinging a pot of paint in the public’s face”.
Whistler alleged such a review implied he was a fraud and the jury agreed. However, they only awarded him a farthing. To add to the debacle the judge failed to award any costs. Whistler was financially ruined for the rest of his life.
There is a tried and true maxim that applies to plaintiffs in defamation actions that likens taking on such litigation as riding on the back of a tiger. If you fall off you’ll be mauled severely. It appears the personal finances of the nation’s Treasurer have just taken that fall.
Nicholas Pullen is a Melbourne-based partner with HWL Ebsworth specialising in media and defamation law.