Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
HEARING DATE(S):
5 March 2010
JUDGMENT DATE:
7 December 2010
JUDGMENT OF:
Spigelman CJ at 1; Beazley JA at 2; McColl JA at 11; McClellan CJ at CL at 282; Bergin CJ in Eq at 283
DECISION:
1. Appeal allowed in part. 2. Set aside order 3 below, and in lieu thereof verdict for the respondent in respect of the third publication (the programme) of $125,000. 3. Direct the parties to calculate interest on the revised damages in accordance with these reasons and file short minutes of order setting out the substituted judgment within seven days of these reasons. 4. Reserve the costs of the appeal and the trial. 5. (a) Appellant to file and serve written submissions limited to five pages in length concerning costs (in this Court and at trial) within seven days; (b) respondent to file and serve written submissions also limited to five pages in length concerning such costs within 14 days. [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:
DEFAMATION – defences – substantial truth – whether necessary to prove each element of imputation a matter of substantial truth – whether element a material part of the imputation – whether sting of imputation proven to be a matter of substantial truth – Defamation Act 1974 (NSW), s 15 - DEFAMATION – defences – contextual truth – whether by reason of the substantial truth of one imputation remaining imputations did not further injure reputation – Defamation Act 1974 (NSW), s 16 - DEFAMATION – damages – mitigation of damages – evidence of bad reputation – identification of scope of reputation capable of being harmed by imputations – whether evidence of bad reputation goes to relevant sector of reputation - DEFAMATION – damages – mitigation of damages – evidence of bad reputation – post-publication evidence of bad reputation – correctness of Rochfort v John Fairfax & Sons Pty Ltd [1972] 1 NSWLR 16 - DEFAMATION – damages – mitigation of damages – bad reputation – use of judicial findings made in other civil proceedings - DEFAMATION – damages – mitigation of damages – bad reputation – use of evidence properly before the court on some other issue - DEFAMATION – damages – continuing nature of damages for injury to reputation and hurt to feelings - DEFAMATION – damages – where separate publications – assessment of amount to be awarded - DEFAMATION – damages – whether damages excessive
[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
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Case
[2010] NSWCA 335
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New South Wales considered an appeal by Channel Seven Sydney Pty Ltd against a defamation judgment awarded to Mr. Mahommed. The dispute concerned imputations published by Channel Seven that Mr. Mahommed, a police officer, had engaged in corrupt conduct, including accepting bribes and perverting the course of justice. Mr. Mahommed alleged these publications were defamatory and caused him significant damage to his reputation.
The primary legal issues before the Court of Appeal were whether the defence of substantial truth under section 15 of the *Defamation Act 1974* (NSW) had been established in relation to certain imputations, and whether the defence of contextual truth under section 16 of the *Defamation Act 1974* (NSW) applied. Additionally, the court had to determine the admissibility and relevance of evidence of Mr. Mahommed's alleged bad reputation, both pre- and post-publication, for the mitigation of damages, including the use of judicial findings from other proceedings and evidence already before the court. The court also considered the assessment of damages for separate publications and whether the original award was excessive.
The Court of Appeal found that while some imputations were substantially true, the defence of substantial truth did not apply to all of them, and therefore the defence of contextual truth was also not made out. The court clarified the principles regarding the admissibility of evidence of bad reputation, confirming that such evidence must relate to the relevant sector of reputation harmed by the imputations and that post-publication evidence is admissible, subject to certain conditions. The court also held that judicial findings from other proceedings could be used in mitigation of damages, provided they were properly admitted.
Ultimately, the Court of Appeal allowed the appeal in part, setting aside the original order and substituting a verdict for Mr. Mahommed in the amount of $125,000 in respect of the third publication (the programme). The parties were directed to calculate interest on the revised damages, and the costs of the appeal and the trial were reserved, with written submissions to be filed by both parties.
Orders
Orders of the court
1. Appeal allowed in part. 2. Set aside order 3 below, and in lieu thereof verdict for the respondent in respect of the third publication (the programme) of $125,000. 3. Direct the parties to calculate interest on the revised damages in accordance with these reasons and file short minutes of order setting out the substituted judgment within seven days of these reasons. 4. Reserve the costs of the appeal and the trial. 5. (a) Appellant to file and serve written submissions limited to five pages in length concerning costs (in this Court and at trial) within seven days; (b) respondent to file and serve written submissions also limited to five pages in length concerning such costs within 14 days.
[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.]