As much as $400,000 remains at the centre of live negotiations between Private Media, publisher of Crikey, and Fox News chief executive Lachlan Murdoch after the media magnate dropped his defamation claim against the publisher last week.
The exact figure is a live issue for both parties, according to a source close to the matter, as Private Media moves to convince the Federal Court to order Murdoch to stump up for indemnity costs — at this point, understood to be around $1.1 million — despite crowdfunding $588,735 in donations to a GoFundMe defence campaign.
Federal Court rules suggest that costs are the price of dropping a case for the party that brought the matter to court. In general, the respondent — in this case, Private Media — can expect to recover about 80% of the fees paid to defend themselves, and 100% of the disbursements laid out over the course of doing so, including fees paid to retain counsel.
As things stand, though, the fact that Murdoch discontinued the matter on Friday last week won’t be enough to expect the court to order he pay indemnity costs, which would cover 100% of the money spent by Private Media.
Private Media is currently exploring whether the publisher’s attempts to make “reasonable amends” with Murdoch would be grounds to argue he cover costs in full. At the very least, the source said, the publisher is confident it will recoup 80% of the $1.1 million it spent litigating the case since it was launched in August last year, leaving $400,000 in play.
Murdoch’s team, unsurprisingly, stands squarely at odds with the pitch. His team is expected to push the court to consider deducting the $588,735 it raised in donations made to a GoFundMe campaign, so that the publisher does not recoup its costs twice.
On its crowdfunding page, Private Media promised donors that in the event that the court rules Murdoch pay its costs in full, any surplus money left over would be donated to the not-for-profit Alliance for Journalists’ Freedom.
Private Media, according to the source, is confident that the terms and conditions outlined on the campaign page should shield it from arguments suggesting its costs will be paid two times over.
Private Media declined to comment.
The comparison being drawn by leadership at Private Media is the drawn-out defamation suit mounted by opposition leader Peter Dutton against refugee advocate Shane Bazzi, who was not awarded costs in full after a crowdfunded campaign covered part of his defence. The publisher is expected to argue that they differ because Private Media highlighted the possibility of a costs order from the outset.
Murdoch’s team and representatives of Private Media are expected to soon kick off negotiations on costs, a process that generally takes between three and four months. Failing that, whichever party the court considers the winner would be able to chase a costs assessment, a detailed process that could rule out a full resolution to the case for the next nine months.
Murdoch’s legal team has been contacted for comment.
Exactly who came out of the case a winner on Friday, in the event a cost assessment is pursued, would likely also be up for dispute, after both parties claimed it was them.
“We won” was the rallying cry levelled by Private Media CEO Will Hayward on Friday afternoon. He called the discontinuation a victory for free speech and stood by the publisher’s defence, which claimed Murdoch was “culpable in promoting the lie of the the 2020 US presidential] election result”.
In a statement issued shortly after Murdoch filed notice of his discontinuance in the matter, his lawyer John Churchill said Murdoch remains “confident that the court would ultimately find in his favour”.
