(2) The defendant shall pay the plaintiff damages of $300,000;
(3) Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the defendant shall pay, in addition to the award of damages, interest on the amount of said damages from 4 July 2016 until the date of judgment at 5% per annum;
(4) Notwithstanding the terms of order [3] above, interest is payable on the damages herein in accordance with s 101 of the Civil Procedure Act 2005 (NSW);
(5) The defendant shall pay the plaintiff’s costs of and incidental to the proceedings;
(6) Leave is granted to either party to apply to the Court in writing, by email addressed to the Associate of Rothman J, for a different or special order as to interest or costs. Such application shall be made with a submission in support of no more than five pages, within 14 days of the date of judgment and, if any such application be made, the other party may, within a further 14 days, again by submission of no more than five pages, respond to any such application. The application will be dealt with on the papers and the five page limit does not include any evidence of offer or other document not otherwise in evidence.
(7) Other than in relation to those matters for which the parties’ rights are reserved, the proceedings are dismissed.
Catchwords:
DEFAMATION – justification – honest opinion – effect of contextual imputations – other findings on character – re-publication by national broadcaster of interview in which neighbour defames plaintiff – neighbourhood dispute – re-publication liability – aggravated damages
[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
Cosco v Hutley (No 2) [2020] NSWSC 893
Case
[2020] NSWSC 893
Decision Date
CaseChat Overview and Summary
The dispute between Cosco and Hutley was brought before the Supreme Court of New South Wales. Cosco sought damages for defamation against Hutley, a neighbour, for statements made during a radio interview. The defamatory statements were made by Hutley to a radio journalist, who subsequently broadcast them to the public, leading Cosco to claim for re-publication by the broadcaster. Cosco argued that the statements were defamatory, lacking justification, and that the publication by the broadcaster constituted a re-publication of the defamatory content. The central issue before the court was whether the statements made by Hutley were defamatory, justified as an honest opinion, and whether the broadcaster's re-publication of the interview could be held liable for defamation.
The court examined the nature of the statements and whether they could be considered defamatory. It found that the statements implied a lack of trustworthiness and were defamatory. The court further assessed whether Hutley's statements were protected as an honest opinion, considering the context and the nature of the relationship between the parties. The court held that the statements were not protected as an honest opinion due to the absence of a basis for such an opinion and the presence of contextual imputations that detracted from the plaintiff's character. The court also found the broadcaster liable for re-publishing the defamatory content, as the interview was a significant part of the broadcast and the broadcaster had no reasonable grounds to doubt the truth of the statements.
The court awarded Cosco damages for the defamatory statements, including aggravated damages for the manner and circumstances of the publication. The court held that the broadcaster was liable for re-publishing the defamatory content, as it played a substantial role in disseminating the defamatory material to the public. The court's decision underscored the importance of the context in determining the defamatory nature of statements and the liability of a broadcaster for re-publishing defamatory content. The final orders included damages for defamation, aggravated damages, and a declaration of liability for the broadcaster.