Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 Hearing dates: 23 September 2010 Decision date: 24 November 2011 Before: Giles JA at [1], McColl JA at [8], Sackville AJA at [118] Decision: 1) Appeal allowed with costs.
2) Set aside the orders of Harrison J made on 18 December 2009.
3) Enter a verdict for the appellants.
4) Respondents to pay the costs of the proceedings before Harrison J.
5) Remit the matter to the Common Law Division for assessment of damages.
[Note: 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 - imputations pleaded as false innuendos - dispute at trial of defences before judge alone as to meaning of imputations found by s 7A jury - whether permissible to determine dispute by reference to extrinsic evidence or only by reference to how the s 7A jury would have inferred the ordinary reasonable reader would have read the matter complained of -
DEFAMATION - Defences - Comment - restaurant review - where two restaurants trading under one name - where open to the jury to conclude that ordinary reasonable reader would have read the review to refer to each restaurant - where reviewer only ate at one - where primary judge found each imputation, in the context of the review as a whole, would have been understood by the reader to have been conveyed as a statement of opinion - whether proper material for comment when no facts expressly stated, referred to or notorious in review about one of the restaurants which could form the basis for any of the imputations in respect of it -
DEFAMATION - Defences - Comment - when reviewer did not hold opinion concerning one of two restaurants referred to in review -
DEFAMATION - Defences - Truth - whether defence of substantial truth established where no evidence as to facts concerning one of two restaurants referred to in review - s 15, Defamation Act 1974 -
DEFAMATION - Damages - adequacyLegislation Cited: Defamation Act 1974 Cases Cited: Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Besser v Kermode [2011] NSWCA 174
Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505
Cassell & Co Ltd v Broome [1972] AC 1027
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346
Favell v Queensland…
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- Case
- [2011] NSWCA 362
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defence of comment was available when the reviewer did not hold an opinion concerning one of the two restaurants reviewed, and whether this defence was properly made out when no facts were expressly stated or notorious in the review to form the basis for the imputations concerning that restaurant. Furthermore, the court had to consider whether the defence of substantial truth was established, given the absence of evidence regarding the facts pertaining to one of the restaurants. The adequacy of damages was also a point of contention.
The court reasoned that the meaning of the imputations, particularly in the context of a review of two restaurants under one name, could be inferred by an ordinary reasonable reader to refer to each establishment. It was held that for the defence of comment to succeed, the reviewer must have held the opinion concerning the subject matter being commented upon. The court found that the primary judge erred in concluding that each imputation would have been understood as a statement of opinion, particularly in relation to the restaurant where the reviewer had not dined and no specific facts were provided. Consequently, the defence of comment was not properly open on the evidence. Similarly, the defence of substantial truth could not be established without evidence relating to the specific restaurant in question.
The appeal was allowed, the orders of the primary judge were set aside, and a verdict was entered for the appellants. The respondents were ordered to pay the costs of the proceedings before the primary judge, and the matter was remitted to the Common Law Division for the assessment of damages.
Orders
Orders of the court
1) Appeal allowed with costs.
2) Set aside the orders of Harrison J made on 18 December 2009.
3) Enter a verdict for the appellants.
4) Respondents to pay the costs of the proceedings before Harrison J.
5) Remit the matter to the Common Law Division for assessment of damages.
[Note: 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.]
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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