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

FEDERAL COURT OF AUSTRALIA

Hayson v The Age Company Pty Ltd (No 3) [2020] FCA 1163 File number: NSD 870 of 2017

Judge: BROMWICH J

Date of judgment: 14 August 2020

Catchwords: COSTS – applications for indemnity costs by both applicant and respondents to defamation proceeding – where the respondents conceded two of the five imputations pleaded by the applicant in the course of the trial – where the applicant did not make out the remaining three of the five imputations pleaded – where the court awarded the applicant $50,000 in damages in respect of defamation established by the two conceded imputations – where numerous offers to settle were made by both the applicant and the respondents – where the applicant made two offers to settle two years before trial and two months before trial respectively – where the respondents made an offer to settle one week before the trial – applicant's second offer not reasonable for the purposes of Defamation Act 2005 (NSW) s 40(2)(a) – respondents' rejection of offer not unreasonable – respondents' offer was not a Calderbank offer – respondents to pay applicant's costs on the usual basis. HIGH COURT AND FEDERAL COURT – whether s 79 of the Judiciary Act 1903 (Cth) operates to 'pick up' Defamation Act 2005 (NSW) s 40 as surrogate Commonwealth legislation – whether, if so 'picked up' Defamation Act s 40 is inconsistent with Federal Court of Australia Act 1976 (Cth) s 43 so as to enliven Australian Constitution s 109 – Australian Constitution s 109 inconsistency does not arise where State legislation 'picked up' as surrogate Commonwealth legislation – no other impediment to s 40, Defamation Act, being 'picked up'.

Legislation: Acts Interpretation Act 1901 (Cth) s 38(1) Australian Constitution ss 80, 109 Defamation Act 2005 (NSW) ss 8, 13, 14, 21, 22, 26, 30, 40 Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) ss 37N, 37M, 40, 43 Judiciary Act 1903 (Cth) ss 68, 78B, 79 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3) Jury Act 1977 (NSW) s 22(a)(ii)