Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 Hearing dates: 29 September 2014 Date of orders: 16 April 2015 Decision date: 16 April 2015 Before: McColl JA at [1]; Macfarlan JA at [214]; Barrett JA at [230] Decision: (1) Appeal allowed.
(2) Cross-appeal allowed.
(3) Set aside the judgments at first instance on damages and interest.
(4) Judgment to be entered in favour of each appellant in an amount to be determined in accordance with the Court’s reasons.
(5) Note that that component of each judgment calculated in respect of the sum of $175,000 takes effect as of 18 December 2009.
(6) Note that that component of each judgment calculated in respect of the sum of $20,000 takes effect as of 22 June 2012.
(7) If the parties are able to agree as to the amount of the judgments (inclusive of interest) to be entered in accordance with these reasons for judgment, direct that within 7 days they file a form of consent order in the Court of Appeal Registry.
(8) If the parties are unable to so agree, direct that they file proposed forms of orders and submissions in support as follows:
(a) The appellants within 14 days of the date of this judgment
(b) The respondents within 14 days thereafter
(c) Any reply within a further 7 days.
(9) Respondents to pay the appellants' costs of the appeal.
(10) Appellants to pay the respondents' costs of the cross-appeal.Catchwords: DEFAMATION – respondents found to have published review defamatory of appellants’ conduct as restaurateurs in relation to two restaurants they conducted – assessment of damages – aggravated damages – whether primary judge awarded the appellants amounts referrable to the hurt to feelings occasioned by the respondents failure to apologise and the falsity of the imputations –
DEFAMATION – assessment of damages – exemplary damages – first respondent continued to publish restaurant review on its website after Court of Appeal held its defences to appellants’ defamation suit had failed – whether first respondent acted in contumelious disregard of appellants’ rights –
DEFAMATION – assessment of damages – compensatory damages – adequacy –
DEFAMATION – assessment of damages – mitigation – reputation – whether facts established in relation to meals reviewer ate at one of appellants’ restaurants constituted contextual background relevant to the appellants’ reputations – whether and to what extent such facts mitigated the appellants’ damages –
JUDGMENTS – interest on judgment – whether damages judgment should take effect on date earlier than date on which given – Uniform Civil Procedure Rules 36.4Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Defamation Act 1974 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Australian Broadcasting Corp (ABC) v McBride
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- Case
- [2015] NSWCA 99
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several issues relating to the assessment of damages. These included whether the primary judge had awarded amounts referable to the hurt to feelings caused by the respondents' failure to apologise and the falsity of the imputations. The court also considered whether exemplary damages were warranted, specifically in light of the first respondent's continued publication of the review on its website after its defences had failed, and whether this constituted contumelious disregard of the appellants' rights. Furthermore, the adequacy of the compensatory damages awarded and whether certain facts established in relation to meals consumed at one of the appellants' restaurants mitigated the damages were also in question. Finally, the court had to consider the date from which interest on the judgment should take effect, pursuant to Uniform Civil Procedure Rules 36.4.
The Court of Appeal allowed the appeal and the cross-appeal, setting aside the judgments at first instance regarding damages and interest. The court found that the primary judge's assessment of damages was inadequate and that the respondents' conduct, particularly the continued publication of the defamatory material, warranted a reconsideration of the damages awarded. The court determined that judgment should be entered in favour of each appellant for an amount to be determined in accordance with its reasons, with specific components of the judgment taking effect from earlier dates. The parties were directed to agree on the final judgment amounts, including interest, or to file submissions if agreement could not be reached. The respondents were ordered to pay the appellants' costs of the appeal, while the appellants were ordered to pay the respondents' costs of the cross-appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Cross-appeal allowed.
(3) Set aside the judgments at first instance on damages and interest.
(4) Judgment to be entered in favour of each appellant in an amount to be determined in accordance with the Court’s reasons.
(5) Note that that component of each judgment calculated in respect of the sum of $175,000 takes effect as of 18 December 2009.
(6) Note that that component of each judgment calculated in respect of the sum of $20,000 takes effect as of 22 June 2012.
(7) If the parties are able to agree as to the amount of the judgments (inclusive of interest) to be entered in accordance with these reasons for judgment, direct that within 7 days they file a form of consent order in the Court of Appeal Registry.
(8) If the parties are unable to so agree, direct that they file proposed forms of orders and submissions in support as follows:
(a) The appellants within 14 days of the date of this judgment
(b) The respondents within 14 days thereafter
(c) Any reply within a further 7 days.
(9) Respondents to pay the appellants' costs of the appeal.
(10) Appellants to pay the respondents' costs of the cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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