GLEN GEORGE CERUTTI (first applicant) COSCER FINANCIAL PROFESSIONALS (second applicant) v CRESTSIDE PTY LTD ACN 007 343 222 (first respondent) ANDREW SHERRING TURNOUR (second respondent)
FILE NO:
Appeal No 7434 of 2013 DC No 72 of 2007
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
28 February 2014
DELIVERED AT:
Brisbane
HEARING DATE:
7 November 2013
JUDGES:
Margaret McMurdo P and Gotterson JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
Grant leave to appeal against that part of the judgment of the District Court at Townsville dated 12 July 2013 whereby the Court assessed damages to be paid by the first and second respondents to the applicants.1.
Grant leave to appeal against that part of the judgment of the District Court of Townsville dated 19 July 2013 whereby the Court refused to award interest upon the damages so assessed.2.
The appeal is allowed.3.
The judgment in favour of the first applicant be varied by increasing the amount for which judgment was given from $7,000 to $20,000 together with interest in the sum of $3,000 for the period up to and including 19 July 2013.4.
The judgment in favour of the second applicant be varied by increasing the amount for which judgment was given from $5,000 to $10,000 together with interest in the sum of $1,500 for the period up to and including 19 July 2013.5.
The costs orders made in paragraphs 1 and 2 of the judgment dated 7 August 2013 be set aside, and in lieu thereof the order be that the defendants pay the first and third plaintiffs’ costs of and incidental to the to be assessed on the standard basis.proceeding in the District Court at Townsville, TD72/07,6.
The application by the respondents for leave to appeal is refused.7.
The respondents pay the applicants’ costs of and incidental to the applicants’ application for leave to appeal and of and incidental to the respondents’ application for leave to appeal.8.
CATCHWORDS:
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – where the defendants published serious defamatory imputations about an accountant and his firm to three entities – where damages were assessed by the trial judge at $7,000 for the accountant and $5,000 for the firm – whether amounts were manifestly inadequate – whether the trial judge erred in applying a 50 per cent discount for imputations shown to be true – whether there was an error in principle in refusing to award interest
DEFAMATION – DAMAGES – presumption of harm arising from proof of publication – whether a firm must prove actual injury to its business or can rely upon a presumption of injury
DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – FUNCTIONS OF JUDGE AND JURY –…
Grounds of appeal
[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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Details
AGLC
Cerutti v Crestside Pty Ltd [2014] QCA 33
Case
[2014] QCA 33
Decision Date
CaseChat Overview and Summary
The appeal in Cerutti v Crestside Pty Ltd concerns the assessment of damages awarded for defamation. The applicants, an accountant and his firm, alleged that the defendants had published defamatory statements to three entities. The trial judge awarded the accountant $7,000 and the firm $5,000 in damages. The applicants sought leave to appeal the assessment of damages, arguing that the amounts awarded were manifestly inadequate and that the trial judge had erred in applying a 50 per cent discount for imputations shown to be true. The applicants also argued that the trial judge should have awarded interest on the damages.
The court was required to determine whether the damages awarded were manifestly inadequate, whether the trial judge had erred in applying a discount for imputations shown to be true, and whether there was an error in principle in refusing to award interest on the damages. The court also needed to consider whether the firm had to prove actual injury to its business or could rely on a presumption of injury. Furthermore, the court needed to decide whether the jury’s verdict that certain imputations were untrue was unreasonable.
The court found that the damages awarded were manifestly inadequate and that the trial judge had erred in applying a 50 per cent discount for imputations shown to be true. The court held that there was an error in principle in refusing to award interest on the damages. The court also held that the firm did not have to prove actual injury to its business but could rely on a presumption of injury. The court concluded that the jury’s verdict that certain imputations were untrue was not unreasonable. The appeal was allowed, and the judgment was varied to increase the damages awarded to the applicants and to order interest on the damages. The costs orders were set aside, and the respondents were ordered to pay the applicants’ costs of the appeal.
Orders
Orders of the court
Grant leave to appeal against that part of the judgment of the District Court at Townsville dated 12 July 2013 whereby the Court assessed damages to be paid by the first and second respondents to the applicants.1.
Grant leave to appeal against that part of the judgment of the District Court of Townsville dated 19 July 2013 whereby the Court refused to award interest upon the damages so assessed.2.
The appeal is allowed.3.
The judgment in favour of the first applicant be varied by increasing the amount for which judgment was given from $7,000 to $20,000 together with interest in the sum of $3,000 for the period up to and including 19 July 2013.4.
The judgment in favour of the second applicant be varied by increasing the amount for which judgment was given from $5,000 to $10,000 together with interest in the sum of $1,500 for the period up to and including 19 July 2013.5.
The costs orders made in paragraphs 1 and 2 of the judgment dated 7 August 2013 be set aside, and in lieu thereof the order be that the defendants pay the first and third plaintiffs’ costs of and incidental to the to be assessed on the standard basis.proceeding in the District Court at Townsville, TD72/07,6.
The application by the respondents for leave to appeal is refused.7.
The respondents pay the applicants’ costs of and incidental to the applicants’ application for leave to appeal and of and incidental to the respondents’ application for leave to appeal.8.