Reported Decision: 66 NSWLR 675
Court of Appeal
CITATION: Aleksandra Gacic & Ors v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175 HEARING DATE(S): 31 March 2006, 3 April 2006
JUDGMENT DATE:
30 June 2006JUDGMENT OF: Handley JA at 1; Beazley JA at 28; Ipp JA at 106 DECISION: 1. Appeal allowed; 2. Set aside the verdicts for the respondents; 3. Order that there be verdicts for the appellants in respect of imputations (a) and (c); 4. Order that the appellants’ claim in relation to imputation (d) be remitted for determination by a jury in accordance with s 7A of the Defamation Act 1974 (NSW); 5. Order that the respondents pay the appellants’ costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled; 6. Order that the order for costs of the trial pursuant to s 7A of the Defamation Act 1974 (NSW) made by the trial judge remain as to 25 per cent thereof. Otherwise set aside the costs order made by the trial judge and Order that the respondents pay 50 per cent of the appellants’ costs of that trial; the balance of the costs of that trial to abide the outcome of the further hearing. CATCHWORDS: APPEAL – defamation – jury trial under s 7A of the Defamation Act 1974 (NSW) – unreasonable verdicts – appellate intervention warranted – verdict entered by appellate court in favour of appellant - APPEAL – error in inviting jury to consider whether an imputation involved an inference upon an inference – question one of capacity - DEFAMATION – publication – person injured in business, trade or profession - JURY – directions to jury – inadequate directions – clear directions needed to overcome misleading or irrelevant matters in counsel’s address – interfering with jury verdict – imputations plainly defamatory – no reasonable jury properly directed could find otherwise LEGISLATION CITED: Defamation Act 1974 (NSW) s 7A
Supreme Court Act 1970 (NSW) ss 102, 108(3)
Supreme Court Procedure Act 1900 (NSW) s 7CASES CITED: Alford v Magee (1952) 85 CLR 437
Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
Calin v Greater Union Organisation Pty Limited (1991) 173 CLR 33
Charlwood Industries Pty Limited v Brent [2002] NSWCA 201
Cinevest Ltd v Yirandi Productions Ltd [2001] Aust Torts Reports 81-610; [2001] NSWSC 68
CSR Limited v Della Maddalena [2006] HCA 1
Edmond Weil Inc v Russell (1936) 56 CLR 34
Eggins v Brooms Head Bowling and Recreational Club (1986) 5 NSWLR 521
Eggleston R, Evidence, Proof and Probability (2nd Ed 1983)
Farquhar v Bottom & Anor [1980] 2 NSWLR 380
Gorman v Barber (2004) 61 NSWLR 543
Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255
Hocking v Bell (1945) 71 CLR 430
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657
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- Case
- [2006] NSWCA 175
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the jury's verdicts were unreasonable, whether the trial judge had erred in directing the jury, and whether the appellate court should intervene to set aside the jury's findings. Specifically, the court considered whether the jury had been improperly invited to make an inference upon an inference and whether the imputations conveyed by the publications were plainly defamatory, such that no reasonable jury, properly directed, could have found otherwise.
The Court of Appeal found that the jury's verdicts were unreasonable and that the trial judge's directions were inadequate, particularly in light of misleading submissions made by counsel. The court determined that the imputations conveyed by the publications were clearly defamatory and that the jury, if properly directed, could not have reached the verdicts it did. Consequently, the court allowed the appeal, set aside the verdicts for the respondent, and entered verdicts for the appellants in respect of certain imputations. The claim relating to another imputation was remitted for a new jury determination. The court also made orders regarding the costs of the appeal and the trial.
Orders
Orders of the court
1. Appeal allowed; 2. Set aside the verdicts for the respondents; 3. Order that there be verdicts for the appellants in respect of imputations (a) and (c); 4. Order that the appellants' claim in relation to imputation (d) be remitted for determination by a jury in accordance with s 7A of the Defamation Act 1974 (NSW); 5. Order that the respondents pay the appellants' costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled; 6. Order that the order for costs of the trial pursuant to s 7A of the Defamation Act 1974 (NSW) made by the trial judge remain as to 25 per cent thereof. Otherwise set aside the costs order made by the trial judge and Order that the respondents pay 50 per cent of the appellants' costs of that trial; the balance of the costs of that trial to abide the outcome of the further hearing.
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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