Opposition Leader Peter Dutton may not have to pay costs over his unsuccessful defamation case against a refugee advocate after his lawyers told a Sydney court "sham bills" may have been the basis for an assessment of the trial's cost.
Mr Dutton sued Shane Bazzi over a single tweet published in February 2021, which described him as "a rape apologist" and linked to a media article containing previous comments he made about women on Nauru.
Mr Bazzi was initially ordered to pay Mr Dutton $35,000 in damages, but this was overturned on appeal in May.
The two are disputing the question of whether Mr Dutton should pay costs after Mr Bazzi crowdfunded part of his defence.
The Federal Court heard an affidavit filed yesterday by Mr Bazzi's legal team referred to a bill from his solicitors in December for about $233,000, which was the basis for an assessment of the cost of the trial.
But Mr Dutton's barrister, Guy Reynolds SC, said another bill from October was for $155,510.02 — "the exact amount of the crowdfunding".
The affidavit also mentioned a fee "discount" of about $50,000, the court heard.
"If, and I'm only talking theoretically here, it may well be the case that the bills that have been provided on assessment are sham bills, with a possibility that other bills are also sham," Mr Reynolds said.
"The true position may well be that under the arrangement between the solicitors and Mr Bazzi, Mr Bazzi was never liable for anything.
"Rather, the arrangement was, whatever came in by way of crowdfunding was what the solicitors would - I'll put it neutrally — receive."
Mr Reynolds argued for an adjournment, saying the issue needed to be investigated to uncover the facts and the nature of any agreement.
He said he may need to cross-examine Mr Bazzi's solicitor and Mr Bazzi himself and could end up asking the court to order that Mr Dutton shouldn't pay any costs.
Barrister Barry Dean, representing Mr Bazzi, said the matters weren't significant enough to justify an adjournment and the recent affidavit "corrects" earlier documents.
He submitted that when a person had money held in trusts they'd raised themselves and had a bill, even a capped bill, it was still a liability.
"That's a liability that gives rise to a cost," he said.
"It's been described as a windfall, but really what it would be is a reimbursement of the funds that were expended, or in the case of the appeal, are yet to be expended."
Justices Steven Rares, Darryl Rangiah and Michael Wigney granted the adjournment and the case will return to court in November.
