Channel Seven Sydney Pty Ltd v Fisher

Channel Seven Sydney Pty Ltd and others (appellants) appealed to the Court of Appeal of New South Wales against a judgment awarding the plaintiff, Mr Fisher, $125,000 in damages for defamation. The dispute concerned imputations published by the appellants concerning Mr Fisher, which the jury found to be defamatory. The trial judge had made unfavourable credit findings regarding Mr Fisher.

The Court of Appeal was required to determine whether the trial judge had impermissibly "netted" defamatory imputations when assessing non-economic damages, particularly in light of the jury's finding that a contextual imputation was not true. The court also considered whether the trial judge had taken this contextual imputation into account when assessing damages, and whether substantial justice required a new trial given the relatively small amount of damages in issue and the unfavourable credit findings against the plaintiff. The court also had to consider the relevance of the costs of a new trial and the costs of the appeal itself, particularly in light of a rejected offer of settlement by the defendants.

The Court of Appeal allowed the appeal, finding that the trial judge had impermissibly taken the contextual imputation into account when assessing damages. The court reasoned that the damages awarded by the trial judge were inflated by this error. The court also considered the costs implications, noting that the plaintiff had made an offer of settlement that was rejected by the defendants.

Consequently, the Court of Appeal set aside the original damages award and substituted an award of $75,000. The court also made orders regarding the costs of the proceedings at first instance, with costs to be assessed on an ordinary basis up to a certain date and on an indemnity basis thereafter, reflecting the rejected offer. The costs of the appeal itself were ordered to be borne by each party.