Gacic v John Fairfax Publications Pty Ltd - [2013] NSWSC 1920

Supreme Court

New South Wales

Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920
Hearing dates: 10/12/12; 31/1/13; 1/2/13; 7/3/13
Decision date: 19 December 2013
Jurisdiction: Common Law
Before: Hall J
Decision:
1. Judgment be entered in favour of the first plaintiff on the basis of an award of damages in the amount of $160,000.
2. Judgment be entered in favour of the second plaintiff on the basis of an award of damages in the amount of $160,000.
3. Judgment be entered in favour of the third plaintiff on the basis of an award of damages in the amount of $160,000.
4. Plaintiffs directed to bring in Short Minutes of Order to give effect to these reasons for judgment.

Catchwords: DEFAMATION - assessment of damages - where decision at first instance overturned by Court of Appeal and matter remitted back for assessment of damages - restaurant review found to be defamatory of three plaintiffs in respect of two different restaurants operated by them - whether findings made at first instance can support plea in mitigation of damages - findings made at first instance as to statements of opinion of restaurant reviewer are not findings of fact - such findings had no notoriety until judgment at first instance delivered - such findings are not evidence of bad reputation of the plaintiffs - whether plaintiffs entitled to aggravated damages - article removed after Court of Appeal judgment but later restored - continued internet publication after Court of Appeal judgment increased harm caused by original publication - such conduct by first defendant was "unjustified" in light of circumstances of case - aggravated damages awarded
Legislation Cited: Civil Liability (Non-economic Loss) Order 2010
Civil Liability Act 2002
Defamation Act 1974
Motor Accidents Compensation (Determination of Loss) Order No 3
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Burstein v Times Newspaper Ltd [2001] 1 WLR 579
Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44
Cassall and Co Ltd [1972] AC 1027
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232
Convery v The Irish News Limited [2008] NICA 14
Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675
Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362
Gacic v John Fairfax Publishing Pty Ltd [2009] NSWSC 1403
Goody v Oldhams Press Ltd (1967) 1 QB 333
Gray v Motor Accident Commission (1998) 196 CLR 1
Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182
Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
John Fairfax & Sons v Kelly (1987) 8 NSWLR 131
Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312
Pamplin v Express Newspapers Ltd [1988] 1 WLR…

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.

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Details

Case: [2013] NSWSC 1920
Decision Date: 19 December 2013

CaseChat Overview and Summary

The plaintiffs, Mr. Gacic and his family, brought a defamation claim against John Fairfax Publications Pty Ltd, publishers of the Sydney Morning Herald, following a review published in the newspaper. The review contained statements that were found to be defamatory in relation to two restaurants operated by the plaintiffs. The case was initially heard in the Federal Circuit Court, where damages were assessed, but this decision was overturned by the Full Court of the Federal Court and the matter was remitted back for reassessment of damages.

The key legal issues for the court to decide were whether the findings made at first instance could support a plea in mitigation of damages, whether the plaintiffs were entitled to aggravated damages, and the appropriate amount of damages to be awarded. The court found that the findings made at first instance as to statements of opinion were not findings of fact and therefore could not be relied upon to mitigate damages. Additionally, the court held that the plaintiffs were entitled to aggravated damages due to the continued internet publication of the article after the Court of Appeal judgment, which increased the harm caused by the original publication.

The court found that the conduct of the first defendant in continuing to publish the article after the Court of Appeal judgment was "unjustified" in light of the circumstances of the case. The court awarded aggravated damages to the plaintiffs and remitted the matter back to the Federal Circuit Court for reassessment of damages. The final orders of the court were that the plaintiffs were entitled to aggravated damages and that the matter be remitted back for reassessment of damages.

Orders