Al Muderis v Nine Network Australia Pty Ltd (Costs)

Al Muderis v Nine Network Australia Pty Ltd (Costs) [2026] FCA 491 is a Federal Court costs judgment delivered by Abraham J on 23 April 2026 after the applicant’s defamation case had already been dismissed. The court ordered the applicant to pay the respondents’ costs on an indemnity basis from the commencement of the hearing, directed that those costs be dealt with on a lump sum basis, and stayed the costs order until further order.

The decision is important because it shows the court focusing on litigation conduct, not just the final result. The visible reasons emphasise that indemnity costs are not automatic even after a comprehensive win. What mattered here was whether the case had special or unusual features, including conduct inconsistent with the overarching purpose of civil procedure.

The underlying dispute was a defamation proceeding brought by Dr Munjed Al Muderis against Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and others. The earlier trial judgment, delivered on 8 August 2025, dismissed his application. The later judgment at [2026] FCA 491 did not revisit liability in full. Instead, it dealt with what should happen on costs after that loss.

At the costs stage, there was no real argument that the unsuccessful applicant should pay costs in some form. The real dispute was about the basis and mechanics of the order. The respondents wanted indemnity costs, a lump sum costs process, and they also relied on several different pathways in support of indemnity costs. The applicant opposed indemnity costs, resisted aspects of the respondents’ arguments, and sought a stay pending appeal.

The judgment gives a clear sense of the scale and intensity of the underlying trial. The applicant had pleaded 75 imputations. The hearing ran for 65 sitting days. The court noted that much of that time was occupied by witness evidence concerning the respondents’ contextual truth defence, and another portion involved cross-examination of the individual respondents about their investigation and the publications. Some imputations were not conveyed, but the respondents succeeded on contextual truth and public interest.

The respondents argued that this was not just a case where they happened to win after a hard-fought trial. They said the applicant had instituted and run the case in a way that forced them to incur costs unreasonably. Their complaints included the applicant’s own evidence, the treatment of former patients and medical colleagues in the witness box, broad attacks on the honesty of opposing witnesses, and what the court described as a baseless concoction theory.

The applicant answered that his legal team had reviewed the material and certified the claim, that the issues involved evaluative judgments rather than simple factual propositions, and that this was not a case where he knowingly sued on a false basis. He also argued that some matters were genuinely arguable and that parts of the trial length were attributable to the respondents, including matters about hearing readiness and changes to the defence.

That set up the central question for the costs judgment: did the respondents show the kind of special or unusual features that justify indemnity costs, and if so, from what point?

The legal issue was not whether the publications were defamatory. That had already been decided in the earlier trial judgment. The costs judgment was about the court’s discretion under the Federal Court of Australia Act 1976 (Cth), including the requirement in s 37N(4) to take account of any failure to comply with the overarching purpose of civil procedure in s 37M(1).

The court restated the orthodox position that indemnity costs are not punitive and are not awarded merely because one side wins comprehensively. There must be some special or unusual feature. The judgment lists familiar examples from authority, including false allegations, false evidence, groundless contentions, wilful disregard of known facts, and other conduct that takes the case outside the ordinary run.

So the practical legal question was whether the applicant’s conduct of the litigation, especially at hearing, justified moving from ordinary costs to indemnity costs. The court also had to decide whether costs should be fixed on a lump sum basis and whether the order should be stayed pending appeal.

The court made three principal orders. First, the applicant was to pay the respondents’ costs, with those costs assessed on an indemnity basis from the commencement of the hearing. Second, costs were to be paid on a lump sum basis, either by agreement or, failing agreement, by referral to a Registrar to determine an appropriate lump sum figure. Third, the costs order was stayed until further order.

The visible reasons show that Abraham J accepted the respondents had established conduct-based features taking the case outside the ordinary. The court referred to adverse credit findings about the applicant’s evidence, including findings that at times he was not an honest witness, gave false evidence, made up evidence to suit his case, and gave evidence inconsistent with affidavits, documents and objective evidence. The court said those matters went to the heart of the allegations in the case.

The court also focused on the applicant’s treatment of the respondents’ witnesses. With few exceptions, the applicant challenged their credit by accusing them of lying, giving false evidence, fabricating evidence or dishonesty. The judgment notes that generally no motive was put, and that pulling back from some assertions in closing submissions did not undo the fact that the allegations had been made during the hearing.

Another important feature was the concoction theory raised during the hearing. The court described it as baseless. The reasons indicate that the respondents had to deal with broad calls for communications apparently linked to that theory, and that the applicant later attempted to abandon or recast the allegation. The court treated the making of allegations without foundation, or knowing them to be false, as a recognised basis on which indemnity costs may be ordered.

The court also rejected the idea that the evaluative nature of some imputations answered the respondents’ case on costs. Even if some imputations involved evaluative concepts such as negligence or unethical conduct, the court said that did not mean the applicant could not have known many of the underlying facts relied on to establish substantial truth. The visible reasons state that there were very many factual matters the applicant must have known were true but nonetheless challenged. The court accepted the respondents’ submission that the applicant’s conduct required them to establish factual matters denied by the applicant which ought not to have been in issue.

On lump sum costs, the court considered that the length of the trial meant a detailed taxation process would be protracted and expensive. A lump sum process was therefore appropriate, while still allowing submissions about the reasonableness of costs incurred. On the stay application, the court granted a stay because the applicant was unlikely to suffer prejudice, the amount of the costs order was not yet being fixed, and the appeal date was close.

The judgment is useful because it identifies practical triggers that can move a case from ordinary costs into indemnity costs territory. The court did not say that losing a truth case automatically leads to indemnity costs. Instead, it looked at whether the conduct of the litigation had special or unusual features.

On the visible reasoning, the main trigger points were these: serious adverse credit findings against the applicant on central issues, making or maintaining allegations without proper foundation, broad attacks on the honesty of witnesses without a proper basis, and forcing the respondents to prove factual matters that should not have been contested. The court also treated conduct that increased the length and complexity of the hearing as relevant.

For business readers, the point is not that every failed case attracts indemnity costs. It is that a court may look closely at whether your factual denials, witness attacks and hearing tactics were responsibly maintained. Once a case moves into a long hearing, those choices can have major costs consequences.

A recurring theme in the judgment is the relationship between documents, objective facts and the way a party chooses to run the case. The court referred to evidence being inconsistent with affidavits, practice documents and objective evidence. It also referred to factual matters that should have been uncontentious in light of the evidence.

That matters because many commercial disputes turn less on abstract legal theory and more on whether a party can responsibly maintain a factual position once the documents are assembled. A business may begin a case with a strongly held view, but if internal records, emails, contracts, file notes or operational documents point the other way, continuing to deny obvious facts can become dangerous.

The judgment also shows the risk of letting cross-examination and submissions become more accusatory than the evidence supports. Alleging dishonesty, fabrication or collusion can be tempting in high-stakes disputes, especially where reputational issues are involved. But if those allegations are not properly grounded, they can worsen the costs outcome even beyond the loss on the merits.

Businesses should therefore treat litigation conduct as an evidence management exercise. Before maintaining a denial or making a serious allegation, ask whether the available documents, witness accounts and objective circumstances genuinely support it. If not, narrowing the issue may reduce both hearing time and costs exposure.

This case should be read as a warning about litigation discipline. It is not limited to defamation. Any business in Federal Court litigation can face a similar costs analysis if the court concludes that the case was run in a way that was inconsistent with the overarching purpose of resolving disputes justly, quickly, inexpensively and efficiently.

For business owners and in-house decision makers, the practical question is not just whether you believe you are right. It is whether each contested issue still deserves to be contested after disclosure, witness preparation and hearing evidence. A position that was arguable at filing may become weak or unsustainable later. If it is still maintained aggressively, the costs risk can increase.

The judgment also shows the importance of separating emotional conviction from forensic judgment. In reputational disputes especially, parties can become invested in proving that the other side acted maliciously or dishonestly. But courts expect precision. Unsupported rhetoric, broad attacks on witnesses and theories that are later abandoned can all count against the party running them.

There is also a process lesson in the lump sum costs order. After a very long trial, the court may prefer a more efficient way of fixing costs rather than a prolonged item-by-item assessment. That means businesses should keep clear costs records and be ready to justify reasonableness if a lump sum process is ordered.

The costs judgment was delivered on 23 April 2026 in the Federal Court of Australia. The judgment records that the earlier trial judgment dismissing the defamation application was delivered on 8 August 2025. The costs hearing date recorded in the judgment is 1 December 2025, and the date of last submissions is 6 March 2026.

The court also noted that an appeal was on foot or imminent enough to justify considering a stay, and granted a stay of the costs order until further order. Because the amount of costs was not yet fixed, the practical financial effect of the order was deferred while the appeal position progressed.

This page is based on the published Federal Court reasons in Al Muderis v Nine Network Australia Pty Ltd (Costs) [2026] FCA 491 and the orders set out in that judgment. The visible reasons are detailed on the costs issues but are truncated near the end, so this page focuses on the reasoning that is clearly available.

The judgment itself repeatedly assumes familiarity with the earlier trial reasons. Readers who need the full factual background to the publications, imputations and trial findings should also read Al Muderis v Nine Network Australia (Trial Judgment) [2025] FCA 909.

The subject matter of this case is defamation costs and civil procedure. It should not be treated as an Australian Consumer Law authority.