"Mr Hockey failed on a number of legal and factual issues in the trial," he said. Fairfax Media has been ordered to pay 15 per cent of Joe Hockey's recoverable costs. Credit:Nick Moir But Mr Hockey came out swinging on Wednesday, saying that "after nearly twenty years in public life I took this action to stand up to malicious people intent on vilifying Australians who choose to serve in public office to make their country a better place". "Whilst the cost of this action has been considerable for me, my family and friends, it has been far greater for Fairfax Media. They are clearly not 'Independent. Always'," he said, in a reference to the Herald's slogan. "I do not regret taking this action," Mr Hockey said.

The fight over costs was as fierce as the substantive dispute over a series of articles, posters and tweets published by the three mastheads. The parties' combined legal bill is more than $1 million. Illustration: Ron Tandberg Mr Hockey and Fairfax had been at loggerheads over who should pick up the bill for the case, which resulted in a partial victory for the Treasurer and a damages payout of $200,000 plus $7000 in interest. Justice White's ruling does not mean Mr Hockey will be able to claim 15 per cent of his total costs. The costs order was made on an ordinary rather than an indemnity basis, which means only about 60 to 70 per cent of a total bill is recoverable in any case.

A spokesperson for Fairfax Media said: "The costs judgment is a fair reflection of the outcome of the proceedings where Mr Hockey failed on all of the matters which were the real core of his claim." Justice White also declined to issue seven injunctions sought by Mr Hockey. In his principal judgment Justice White found Fairfax defamed Mr Hockey by publishing the words "Treasurer for Sale" on Sydney Morning Herald advertising posters and in two messages on Twitter from The Age's Twitter account. However, Justice White dismissed the balance of Mr Hockey's case in relation to the articles promoted by the posters and tweets. In his judgment on costs and injunctions he said there was no need to order Fairfax Media to take down two tweets from The Age's Twitter account as the publisher did so the day after he handed down judgment that found they were defamatory .

Mr Hockey had also sought a permanent injunction to restrain the Herald and The Age from republishing the imputations that were found to be conveyed by the poster and the tweets. This included that Mr Hockey was "corrupt in that he was prepared to accept payments to influence his decisions as Treasurer". Justice White rejected the application. He said in promptly taking down the offending tweets, The Age had shown its "respect for court orders and a willingness to act responsibly". The only Herald publication found to be defamatory was the poster "Treasurer for Sale" placed outside newsagents and retailers on the day the series of articles about Mr Hockey and Liberal fundraising body the North Sydney Forum were published. Given the "topical and transient" nature of posters, Justice White said it was "highly improbable" that the Herald would republish it.

Although he found Herald editor-in-chief Darren Goodsir had been motivated by malice and "lost objectivity" when crafting the headline Treasurer for Sale, Justice White said Goodsir's evidence was "generally reliable" and was not likely to defame Mr Hockey again. Crucially, Justice White declined to order the injunctions as it may restrict the freedom of the press in the future to report on Mr Hockey's conduct. He said the characterisation in the articles of the access given to members of the North Sydney Forum as "privileged" was not wrong or inappropriate. What would be inappropriate is an order preventing Fairfax Media from publishing future articles on the issue of the relationship between donations and access to senior politicians. "The Court should not place Mr Hockey in any better position than any other member of the Australian community in this respect," Justice White said. In a costs hearing last Tuesday Mr Hockey's lawyers said the Herald and Age should pay his costs on an indemnity or ordinary basis, and that each party bear its own costs in the case against the Canberra TImes.

Bruce McClintock SC submitted that Fairfax should pay 90 to 95 per cent of Mr Hockey's costs of the case, if all three publications were taken together. But Fairfax's barrister Sandy Dawson said this would be "manifestly unfair", given that Mr Hockey "failed in respect of 12 out of 15 [matters] sued on". He submitted that Mr Hockey should pay 60 per cent of Fairfax's costs in the Herald and Age matters and all its costs on the ordinary basis in the Canberra Times matter Mr Dawson said the publisher was the "overwhelming winner" of the case and should not be forced to pay the lion's share of Mr Hockey's costs. Justice White rejected Mr Dawson's characterisation of the outcome, saying Mr Hockey had "partial success" evidenced by the award of damages and should get a "partial order for costs". He said awarding the Herald and Age 60 per cent costs would be "unusual". However, he described Mr Hockey's claim there should be no order for costs in the Canberra Times matter as "unrealistic" given the Treasurer failed altogether in that case.

Mr Hockey further claimed he should be awarded indemnity costs because his lawyers offered a "settlement" by way of a letter of complaint on the day the articles were published on May 5 last year. Justice White rejected this submission, saying it was clearly a letter of demand for an apology and retraction with the threat of initiating legal action. The judgment also reveals Mr Hockey made an offer of compromise in August last year but Fairfax Media did not respond. Justice White said Fairfax was not unreasonable in this regard, particularly as the amounts sought by Mr Hockey "well exceeded the amounts ultimately awarded". Further, it was reasonable for Fairfax Media not to offer Mr Hockey an out-of-court settlement, a position vindicated by their victory on the "real core" of the trial. Justice White said Mr Hockey's case of malice "actually counts against him" or "neutralises" the question of costs because he claimed not only Goodsir, but Age editor-in-chief Andrew Holden and reporter Mark Kenny had been actuated by malice. But only Goodsir was found to have acted for an improper purpose. In his statement, Mr Hockey said, "This is an unprecedented finding by a court against an Editor-in-Chief of a major Australian newspaper." Both parties have 21 days to launch an appeal.



