The media group claims the federal treasurer should pay 60% of its legal fees because his lawyers failed to prove the newspaper articles were defamatory

This article is more than 5 years old

This article is more than 5 years old

Fairfax Media is fighting for Joe Hockey to pay 60% of its legal costs in the “Treasurer for sale” defamation case, arguing the politician’s action has been an “unmitigated disaster”.

Although Hockey has already been awarded $200,000 for defamatory newsstand posters and tweets about the story, Fairfax’s lawyers argued in a Sydney court on Tuesday that the media group had won overall because the claim against the actual newspaper article had been dismissed.

Hockey opposes Fairfax’s application, and says the group should instead pay 90-95% of his costs. Each side is estimated to have spent about $1m on their respective cases.

In submissions to Justice Richard White, Fairfax’s barrister Sandy Dawson said: “This case was not about tweets, this case was not about a poster this case was about a major front page article that raised proper and legitimate questions about the way political funds are raised.

“...Overall, the winner as a matter of impression was Fairfax.”

But Hockey’s lawyer, Bruce McClintock SC, dismissed his claims.

“The assertion it was an unmitigated disaster for Mr Hockey is ridiculous,” he said.

McClintock was interrupted by Justice White who said the pair needed to stop “posturing” about the effect of the judgement.

McClintock criticised Fairfax for not attempting a settlement with Hockey before the decision and argued that because Hockey was awarded “substantial” damages in June, Fairfax should pay a substantial amount of his costs.

Dawson countered that it successfully defended its newspaper articles and should not bear the whole costs.

McClintock argued: “Overwhelmingly the defence of the case was reasonableness and was the same for all articles, there was no additional time whatsoever caused by inclusion of failed claim in relation to print articles.



“The same points were made in relation to the claim based on the poster and based on the tweets.”

The two sides also debated the injunction Hockey is seeking for Fairfax to never repeat the claims in the stories but Dawson said such an injunction would “strike at the heart of freedom of the press”.

Justice White hypothesised such an injunction would mean Fairfax would not be able to report on any potential allegations of corruption against Hockey.

“There is not even a hint that Mr Hockey would engage in corrupt conduct but it is not unknown for respectful, reliable, responsible persons to fall from grace,” the judge said.

“I’m not suggesting Mr Hockey is likely to, but the injunction you seek would preclude the respondents from publishing that if it was to occur.”

Hockey had a partial win in the case last month when the court found two tweets by the Age about the story and Sydney Morning Herald posters advertising it with the phrase “Treasurer for Sale” were defamatory. However, the contents of the articles, were not found to be defamatory and Hockey was awarded $200,000.

The Fairfax stories detailed how a fundraising body, the North Sydney Forum, offered a place at lunches and events with Hockey in exchange for membership fees of up to $22,000.

Money paid to the forum was passed on to the Liberal party as donations.

Justice White has reserved his decision on the costs.