Gacic v John Fairfax Publications Pty Ltd (No 2) - [2014] NSWSC 738

Supreme Court

New South Wales

Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd (No 2) [2014] NSWSC 738
Hearing dates: 13 February 2014 and on written submissions
Decision date: 06 June 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) Judgment for the first plaintiff against the defendants in the amount of $207,842.19.
(2) Judgment for the second plaintiff against the defendants in the amount of $207,842.19.
(3) Judgment for the third plaintiff against the defendants in the amount of $207,842.19.
(4) The defendants to pay the plaintiffs' costs of and incidental to the proceedings remitted by the Court of Appeal in respect of which judgment was delivered on 19 December 2013 on an indemnity basis.

Catchwords: COSTS - defamation proceedings - award of pre-judgment interest at 3% per annum - defendant unreasonably failed to make a settlement offer - costs of and incidental to the proceedings to be assessed on an indemnity basis
Legislation Cited: Civil Procedure Act 2005 (NSW)
Defamation Act 1974 (NSW)
Defamation Act 2005 (SA)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Cornes v The Ten Group Pty Ltd (No 2) [2012] SASCFC 106
Davis v Nation Wide News Pty Ltd [2008] NSWSC 946
Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920
Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362
Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403
George Jamoo v Nation Wide News Pty Ltd [2004] NSWSC 126
Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877
Habib v Radio 2UE Sydney (No 4) [2012] NSWDC 12
Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270
MPB (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Nicholson v Nicholson (1994) 35 NSWLR 308
Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Consequential orders
Parties: Aleksandra Gacic (First Plaintiff)
Ljiljana Gacic (Second Plaintiff)
Branislav Ciric (Third Plaintiff)
John Fairfax Publications Pty Ltd (First Defendant)
Matthew Evans (Second Defendant)
Representation: Counsel:
Mr C A Evatt; Mr R K Rasmussen (Plaintiffs)
Mr T D Blackburn SC; Mr D R Sibtain (Defendants)
Solicitors:
McKenzie Leamey Solicitors & Barristers (Plaintiffs)
Banki Haddock Fiori (Defendants)

File Number(s): 2004/176936

Judgment

INTRODUCTION

The plaintiffs, Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric, claimed damages from the defendant in respect of publication of a restaurant review on 30 September 2003. Following an appeal to the Court of Appeal (Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362), orders were made remitting the proceedings for an assessment of damages. Following a hearing on damages, I delivered judgment on 19 December 2013: Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920.

Judgment was entered in favour of each of the plaintiffs in the amount of $160,000. I reserved the question of costs.

On 13 February 2014, counsel addressed on…

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: [2014] NSWSC 738
Decision Date: 06 June 2014

CaseChat Overview and Summary

In Gacic v John Fairfax Publications Pty Ltd (No 2), the plaintiff, Mr Gacic, sought compensation from the defendant, John Fairfax Publications, for defamation arising from an article published in The Sydney Morning Herald. The dispute centred on the publication of an article that Mr Gacic claimed was defamatory, resulting in harm to his reputation and professional standing. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether pre-judgment interest should be awarded at a rate of 3% per annum and whether the defendant's unreasonable failure to make a settlement offer justified the assessment of costs on an indemnity basis. The court needed to determine the appropriate interest rate for pre-judgment damages and the implications of the defendant's conduct on the costs awarded.

The court ruled that the award of pre-judgment interest at 3% per annum was appropriate, aligning with the standard practice in defamation cases. Additionally, the court found that the defendant's unreasonable failure to make a settlement offer warranted the assessment of costs on an indemnity basis. This decision was based on the principle that a party who unreasonably refuses to settle should not be allowed to benefit from a more favourable outcome than if they had settled. The court's reasoning emphasised the importance of encouraging settlement discussions and the consequences of failing to do so.

The final orders of the court included the award of pre-judgment interest at 3% per annum and the assessment of costs on an indemnity basis, reflecting the defendant's unreasonable conduct in not making a settlement offer. This decision underscored the court's commitment to promoting reasonable settlement negotiations and ensuring that parties are held accountable for their conduct during litigation.

Orders