Beazley JA at 1; Basten JA at 10; Tobias AJA at 45
Decision:
1. Refuse leave for the respondent to rely on its notice of contention filed on 1 December 2011.
2. Appeal allowed.
3. Set aside the verdict and judgment for the defendant made by the trial judge.
4. Order that there be a verdict and judgment for the plaintiff in the sum of $10,000.
5. There be no order for the costs of the appeal with the result that each party pay his or her own costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - civil - grant of leave to appeal - overwhelming weight of authority supports appellant's position in relation to a point of fundamental principle - costs of appeal will exceed the amount in dispute - whether appropriate case for grant of leave to appeal
DAMAGES - assessment - whether trial judge should consider all arguments raised despite dismissing a claim - when trial judge should assess damages after finding that no loss was suffered
PROCEDURE - civil - abuse of process - application at hearing of appeal that claim should have been dismissed as abuse of process - whether open to defendant below to make application for dismissal of proceedings on appeal - discussion of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946
PROCEDURE - civil - notice of contention - whether leave should be granted to rely on notice of contention filed out of time - novel point raised on appeal - considerations relevant to grant or refusal of leave
Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Civil Procedure Rules 1998, r 1.1 Defamation Act 2005 (NSW), s 33 European Convention on Human Rights, Article 6 Human Rights Act 1998 (UK)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bristow v Adams [2012] NSWCA 166
Case
[2012] NSWCA 166
Decision Date
CaseChat Overview and Summary
In *Bristow v Adams*, the appeal concerned a defamation claim where the appellant, Bristow, sought leave to appeal against a decision of the trial judge. The respondent, Adams, sought to rely on a notice of contention filed out of time. The appeal raised fundamental questions regarding the presumption of harm in defamation cases in Australian law, the proper approach to assessing damages when a claim is dismissed, and whether a claim could be dismissed as an abuse of process at the appellate stage.
The central legal issues before the Court of Appeal were whether an Australian defamation action carries a presumption of harm upon proof of publication, the circumstances in which a trial judge should consider all arguments despite dismissing a claim, and whether it was open to the defendant to argue for dismissal of the proceedings as an abuse of process on appeal. The court also had to determine whether to grant leave to the respondent to rely on its notice of contention filed outside the prescribed time limits, which raised a novel point on appeal.
The Court of Appeal allowed the appeal, setting aside the trial judge's verdict and judgment for the defendant. The court found that the overwhelming weight of authority supported the appellant's position on a point of fundamental principle, indicating that the presumption of harm in defamation cases, as discussed in cases like *Dow Jones & Co Inc v Gutnick* and *Mirror Newspapers Ltd v Fitzpatrick*, was applicable. Consequently, the court entered a verdict and judgment for the plaintiff in the sum of $10,000. Leave was refused for the respondent to rely on its notice of contention. Given the circumstances, including the costs of the appeal potentially exceeding the amount in dispute, the court made no order for the costs of the appeal, meaning each party was to bear their own costs.
Orders
Orders of the court
1. Refuse leave for the respondent to rely on its notice of contention filed on 1 December 2011.
2. Appeal allowed.
3. Set aside the verdict and judgment for the defendant made by the trial judge.
4. Order that there be a verdict and judgment for the plaintiff in the sum of $10,000.
5. There be no order for the costs of the appeal with the result that each party pay his or her own costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]