Gacic v John Fairfax Publications Pty Ltd

The appellants, who conducted two restaurants, appealed to the Court of Appeal of New South Wales against a decision concerning damages awarded following a defamation finding against the respondents, John Fairfax Publications Pty Ltd. The dispute centred on a restaurant review published by the respondents which was found to be defamatory of the appellants' conduct as restaurateurs.

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.