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Chel v Fairfax Media Publications (No 7)

Chel v Fairfax Media Publications (No 7)

Case [2017] NSWSC 996 28 July 2017

Defamation

Aggravated & Exemplary Damages

Reliance on Evidence

Harm to Reputation

Media & Entertainment Law

Defamation

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Supreme Court

New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996
Hearing dates: 6 February 2017 to 27 February 2017; 31 March 2017
Date of orders: 28 July 2017
Decision date: 28 July 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   On or before 24 August 2017 the parties file and serve submissions on interest and costs which are not to exceed 6 pages.

(2)   The proceedings be listed for mention on 29 August 2017 at 9.30am.
(3)   There be liberty to apply.
Catchwords: DEFAMATION – damages – jury trial – nightclub owner – imputation that she allowed sex on stage – imputation that she was a menace for failing to prevent drink spiking – other imputations not conveyed or substantially true – mitigation – effect of true imputations – reliance on evidence adduced in support of defence of substantive truth – harm to reputation – plaintiff’s evidence of distress addressed both defamatory imputations and other topics – aggravated damages – defence conduct of trial justified – no award of aggravated damages – drink spiking allegation serious – $100,000.00 award
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Defamation Act 2005 (NSW), ss 22, 29, 34, 35, 38
Cases Cited: Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702
Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Aktas v Westpac Banking Corporation [2010] HCA 25; 241 CLR 79
Attrill v Christie [2007] NSWSC 1386
Broome v Cassell & Co [1972] AC 1027
Carson v John Fairfax & Sons Ltd; Carson v Slee [1993] HCA 31; 178 CLR 44
Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519
Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379
Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230
Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770
Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90
Jones v Pollard [1997] EMLR 233
McMahon v John Fairfax Publications Pty Limited (No 7) [2013] NSWSC 933
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116
Rogers v Nationwide News Pty Limited [2003] HCA 52; 216 CLR 327
State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Category: Principal judgment
Parties: Lili Chel (Plaintiff)
Fairfax Media Publications Pty Ltd (First Defendant)
Vanda Carson (Second Defendant)
Representation:
Counsel:
C Evatt; R Rasmussen; I Kirgiz; J Hennes (Plaintiff)
T Blackburn SC; L Barnett (Defendants)
Solicitors:
Beazley Singleton Lawyers (Plaintiff)
Banki Haddock Fiora (Defendants)

File Number(s): 2011/409423

Judgment

This judgment concerns the amount of damages to be awarded to the plaintiff, Ms Lilli Chel, who was partially successful in a defamation action. For the reasons that follow I have determined that, although Ms Chel is not entitled to aggravated damages, she is nevertheless entitled to a judgment for $100,000.00. Judgment will be entered in her favour when the issues concerning interest…

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.

Continue reading Chel v Fairfax Media Publications (No 7)

Details

AGLC: Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996
Case: [2017] NSWSC 996
Decision Date: 28 July 2017

CaseChat Overview and Summary

The case of Chel v Fairfax Media Publications (No 7) arose in the Federal Court of Australia, involving a dispute centred around defamation claims by the plaintiff, a nightclub owner, against the defendant, a media publisher. The plaintiff alleged that she was defamed by several imputations published in articles, including that she allowed sex on stage at her venue, that she was a menace for failing to prevent drink spiking, and other imputations not conveyed or substantially true. The case required the court to determine whether the imputations were defamatory, the harm caused, and the amount of damages to be awarded.

The primary legal issues involved whether the imputations were defamatory, whether they were substantially true, and the extent of harm caused to the plaintiff’s reputation. The court also had to consider the effect of the true imputations on the plaintiff's reputation and the mitigation of any harm. The plaintiff argued for aggravated damages, claiming the publication caused her significant distress, while the defendant relied on the evidence to support the defence of substantive truth and argued against an award of aggravated damages.

The court found that while the imputations were defamatory, the plaintiff's evidence of distress addressed both the defamatory imputations and other unrelated topics, making it difficult to quantify the specific harm caused by the defamatory material alone. The court held that the imputation of drink spiking was serious, but the plaintiff’s reliance on evidence to support the defence of substantive truth impacted the harm assessment. The court ruled that the defence conduct of the trial was justified, and there was no award of aggravated damages. Ultimately, the court awarded $100,000.00 in damages for the harm to the plaintiff's reputation caused by the defamatory imputations.

Orders