Brian Stanley Fisher v Channel Seven Sydney Pty Ltd (No 6)

[2015] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation:	Brian Stanley Fisher v Channel Seven Sydney Pty Ltd (No 6) [2015] NSWSC 887
Hearing dates:	1 July 2015
Date of orders:	01 July 2015
Decision date:	01 July 2015
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) The execution of Order 2 made in this proceeding on 17 November 2014 and Order 2 made in this proceeding on 31 December 2014 be stayed until seven days after the determination of proceeding CA 2015/26431, on the condition that the defendants pay the plaintiff $25,000 as partial payment of his entitlement to damages awarded in this proceeding within 21 days of this order being made. (2) Costs to be reserved.
Catchwords:	Costs – stay of execution of judgment pending outcome of appeal – balance between plaintiff’s entitlement to damages and preservation of status quo – stay granted on condition defendants pay $25,000 to plaintiff
Cases Cited:	Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702
Category:	Consequential orders (other than Costs)
Parties:	Brian Stanley Fisher (Plaintiff) Channel Seven Sydney Pty Ltd (First and Second Defendants)
Representation:	Counsel: R. Rasmussen & M. Fozzard (Plaintiff) M. Richardson (First and Second Defendants)   Solicitors: Michael Kreveld Legal (Plaintiff) Addisons Lawyers (First and Second Defendants)
File Number(s):	2011/408095
Publication restriction:	None

EX TEMPORE JUDGMENT

1. Before the Court is a motion filed 23 June 2015 to stay the execution of the judgment. The final orders for the judgment comprised of the orders for costs issued on 31 December 2014 and an earlier order issued on 17 November 2014 being the awarding an amount for damages.

2. The stay is sought pending the outcome of appeal proceedings against the quantum of damages awarded. The judgment of 17 November 2014 awarded the plaintiff $125,000 for defamatory imputations said to arise by verdict of a jury from the broadcast of a segment on the television program “Today Tonight”. The defendants, who were ordered to pay the damages, have satisfied the Court that a stay should operate. The question is on what condition such a stay should operate.

3. The plaintiff is, but for this award of damages, an undischarged bankrupt and, therefore, there is a serious possibility that any amount paid over by the defendants would not be able to be recovered should the appeal be successful. In assessing that issue, I note that the appeal does not challenge the verdict of the jury and, therefore, the outcome on appeal must be an award of some damages. The difficulty is assessing what that amount would be.

4. During the course of the trial and in submissions on the quantum, the defendants argued for nominal damages. As a consequence, the defendants now submit that if a condition be imposed requiring the payment of some of the damages already awarded pending the appeal, the amount of damages should be at its lowest, since the appeal might be successful and the Court of Appeal might accept that nominal damages are appropriate.

5. It seems to me that it is not my function to guess what the Court of Appeal will assess by way of damages, should the appeal be successful. Nevertheless, while the imputations found to be defamatory and not true by the jury were imputations that were serious (the imputations that were found to be true were also serious), they are not in the category of the imputations that arose in this Court in the judgment of Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702, upon which the parties have relied.

6. It seems to me, in the circumstances, and doing the best I can to strike an appropriate balance between the payment to a successful plaintiff who is entitled prima facie to the amount awarded and the preservation of the status quo so appeal is not rendered nugatory, I should grant the stay, subject to a condition that the defendant pay an amount of $25,000 to the plaintiff below.

7. The costs of today are matters that are best determined after the result of the appeal is known and, in those circumstances, I reserve the costs of today to be dealt with by the Court of Appeal or, in the alternative, to be brought back before me on short notice.

**********

Decision last updated: 06 July 2015