Appeal Outcome: Special leave application dismissed with costs 13 February 2009 (S401/2008)
New South Wales
Court of Appeal
CITATION: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 HEARING DATE(S): 5 June 2008
JUDGMENT DATE:
8 August 2008JUDGMENT OF: Tobias JA at 1; McColl JA at 1; Basten JA at 140 DECISION: (a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant’s costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e). (h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e). CATCHWORDS: DEFAMATION – damages – whether manifestly inadequate – assessment of damages – compensatory damages – gravity of imputations – importance of injured feelings - DEFAMATION – assessment of damages – aggravated damages for failure to apologise where no apology solicited by plaintiff - PRACTICE AND PROCEDURE – appeal – grounds of appeal – scope of review of primary judge’s decision – whether Court should interfere with primary judge’s findings on evidence - STATUTES – s 46A Defamation Act 1974 LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Civil Liability Act 2002
Defamation Act 1974
Migration Act 1958 (Cth)CATEGORY: Principal judgment CASES CITED: Ali v Nationwide News Pty Ltd [2007] NSWSC 58
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Bashford v Information Australia [2000] NSWSC 665
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Browne v Dunn (1894) 6 R 67
Carlson v King (1947) 64 WN(NSW) 65
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Clark v Ainsworth (1996) 40 NSWLR 463
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80
Dearman v Dearman [1908] HCA 84; 7 CLR 549
Dingle v Associated Newspapers Ltd [1964] AC 371
Ex parte Reid; Re Lynch (1943) 43 SR(NSW) 207
Fleming v The Queen [1998] HCA 68; 197 CLR 250
Fox v Percy [2003] HCA 22; 214 CLR 118
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; (2005) 21 BCL 454
Humphries v TWT Ltd (1993)…
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- Case
- [2008] NSWCA 183
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had erred in assessing the compensatory damages and, consequently, whether the Court should interfere with the primary judge's findings on the evidence. The appeal also touched upon the scope of review of a primary judge's decision regarding damages and the principles governing the assessment of compensatory damages in defamation cases, including the gravity of the imputations and the importance of injured feelings.
The Court of Appeal found that the primary judge's assessment of damages was indeed manifestly inadequate. Applying established principles for assessing compensatory damages in defamation, the Court considered the seriousness of the defamatory imputations published by the respondent and the impact these had on the appellant's reputation and injured feelings. The Court concluded that the sum awarded by the primary judge did not adequately reflect the gravity of the defamation.
Consequently, the Court of Appeal allowed the appeal, setting aside the original judgment and verdict. The Court substituted its own judgment, awarding the appellant damages in the sum of $275,000, a significant increase from the initial award. The respondent was also ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant's costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e). (h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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