Ruling confirms primary judge can vary costs award on remittal
In an interlocutory application in a defamation proceeding against TCN Channel Nine Pty Ltd and Nine Network Australia Pty Ltd (together, Channel 9), the Full Court of the Federal Court made a minor amendment to its previous orders.
Thurston v Fox Sports Australia Pty Limited (No 2), [2026] FCAFC 118, arose from television broadcasts of a 2020 rugby match between the Penrith Panthers and the New Zealand Warriors in Gosford, New South Wales.
During the broadcasts, commentators discussed footage showing stadium officials ejecting the appellants and others.
The appellants brought defamation claims against Fox Sports Australia Pty Limited and Channel 9. The appellants asserted that the publications defamed them by imputing that they had racially vilified, racially abused, or made racist remarks toward an Indigenous Australian Penrith Panthers player.
The primary judge dismissed the appellants’ defamation claims.
Regarding Channel 9, the judge determined that the appellants failed to make out the allegedly defamatory imputations and ordered them to pay costs of the proceeding on a party and party basis.
The appellants challenged the judge’s order.
In connection with the first appellant, who had passed away in 2025 after the primary judgment, the Full Court decided that s 10 of the Defamation Act 2005 (NSW) proscribed his appeal.
Regarding Fox Sports, whose honest opinion defence was successful, the Full Court dismissed the appeal against the judgment favouring it.
As for Channel 9, the Full Court allowed the second and third appellants’ appeals. The Full Court remitted the matter for the primary judge, who erroneously rejected the alleged imputations, to deal with Channel 9’s pleaded defences and the quantum of any damages.
On 8 July 2026, the second and third appellants’ lawyers filed an interlocutory application. They argued that the Full Court, which was the only one that could set aside the primary judge’s liability and costs orders, should have set aside his costs order in Channel 9’s favour.
On 4 September 2026, the Full Court agreed to amend its 25 June 2026 orders to add “including any question of costs” after the word “proceeding” under r 39.05(h) of the Federal Court Rules 2011 (Cth).
Otherwise, the Full Court denied the second and third appellants’ interlocutory application without costs. According to the Full Court, on remittal, the primary judge could vary his costs order after resolving the issues remitted to him.
The Full Court did not address the submissions straying beyond the scope of the leave granted.
Here are some other recent cost-focused decisions by the Federal Court of Australia.
On 20 July 2026, the court awarded indemnity costs to the respondent law firm, CharterLaw Legal Pty Limited, after dismissing the applicant’s proceeding to set aside a bankruptcy notice that the firm had issued.
On 8 January 2026, the court granted leave to discontinue a proceeding and directed the parties to bear their own costs upon seeing nothing unreasonable in the applicant’s commencement, maintenance, or discontinuance of the proceeding.
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