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Peter Dutton won’t receive full legal costs as defamation case could have been fought in lower court

·3-min read
<span>Photograph: Darren Pateman/AAP</span>
Photograph: Darren Pateman/AAP

Federal court judge notes ‘just because a case involves a national figure does not mean it is of national importance’

Peter Dutton will not receive his full legal costs from refugee activist Shane Bazzi, who he successfully sued for defamation, because it would have been more appropriate to pursue the case in a lower court, the federal court has decided.

Justice Richard White on Wednesday agreed with a bid by Bazzi’s lawyers to trim the costs down, ordering him to pay them as if the case had been run in the Queensland magistrates court.

In November, the defence minister won his defamation case, with damages of $35,000, over a tweet labelling him a “rape apologist” which the court agreed did convey the defamatory imputation he “excuses rape”.

Bazzi’s lawyers asked for the costs bill to be reduced, citing a discretion to do so if the win was worth less than $100,000 or the court decided the case could more suitably have been brought in another court or tribunal.

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Dutton’s lawyers argued his important national position as defence minister warranted seeking vindication of his reputation in the federal court.

But the judge said it would not be appropriate to exercise the discretion more favourably to Dutton “simply because of the important national office he holds”.

“All people are equal before the law irrespective of the position they hold,” he said.

White also observed that “just because a case involves a national figure does not mean it is of national importance”.

In June, the judge warned the parties the case was not among the court’s biggest and could be settled pre-trial, a warning he repeated with reference to the cost reduction rule at a hearing in November.

White noted that Dutton had sent a concerns notice to Bazzi in March asking for an apology and a concession the tweet was without foundation and published with malice.

The notice stated that even if Bazzi agreed to Dutton’s demands, the defence minister could push on with a case seeking to be “significantly compensated for the damage suffered by him”.

The judge noted this invited Bazzi to “to fall on his sword” and still “face a damages claim”, which could not reasonably be regarded as a settlement offer.

Dutton’s only settlement offer came four working days before the trial when almost all the costs had already been incurred, he found.

White said the timing of the offer “concerned” him and Dutton’s lawyers had given “no explanation” as to why it wasn’t made earlier.

The judge noted that settlement offer sought an apology, including for an imputation the court later found was not conveyed – that Dutton condones rape – and a retraction of subsequent criticism Bazzi made of Dutton for bringing the case.

Bazzi made a settlement offers at mediation to drop the case with no order as to costs, a deed promising not to republish the imputation, and a statement that he did not intend the tweet to mean Dutton excused or condoned rape. Bazzi had already deleted the tweet.

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In September, Bazzi added an offer of an apology to Dutton “if anyone interpreted [the] tweet to mean Dutton excused or condoned rape”.

White rejected Dutton’s arguments that Bazzi’s failure to accept the settlement offer was unreasonable, and found there were no “special circumstances” justifying Bazzi paying Dutton’s entire legal bill.

The judge said the case was not unusually complex, likening it to matters dealt with in a magistrates or district court, and approved Bazzi’s application to reduce costs.

He cited the “public policy” goal of encouraging parties to bring a case at the most appropriate level of the court hierarchy.

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