Geyer v Ghosn (No 2)

Case [2020] NSWDC 782

District Court


New South Wales

Medium Neutral Citation: Geyer v Ghosn (No 2) [2020] NSWDC 782
Hearing dates: 9 – 13 and 20 November 2020
Date of orders: 9, 10, 11 and 12 November 2020
Decision date: 16 December 2020
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

See [58]

Catchwords:

TORT – defamation – rulings on evidence during jury trial

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 65(2)(c)

Evidence Act 1995 (NSW) ss 63, 67, 135

Uniform Civil Procedure Rules 2005 (NSW) r 17.5, 21.1, 28.2, 31.10, 31.27

Cases Cited:

ACCC v Air New Zealand Pty Ltd (No 5) [2009] FCA 1479

Ainsworth v Burden [2005] NSWCA 174

Charan v Nationwide News Pty Ltd [2018] VSC 3

Crescent Funds Management (Aust) Pty Ltd v Crescent Capital Partners Management Pty Ltd [2017] FCAFC 2

Feldman v Alhadeff [2017] NSWCA 18,

Feldman v Spinak [2016] NSWSC 1083

Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20

McMahon v John Fairfax Publications Pty Ltd (No 4) [2012] NSWSC 216

Pinnacle Runway Pty Ltd v Triangl Limited [2019] FCA 1662

Roache v Page (No 27) [2003] NSWSC 1046

R v Lee (1950) CLR 25

Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474

Texts Cited:

Uniform Evidence Law (20th edition)

Odgers

Category:Procedural and other rulings
Parties: Plaintiff: Montanna Maxlee Geyer
Defendant: Fouad Ghosn
Representation:

Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Mr J Cohen

Solicitors:
Plaintiff: Brydens Lawyers
Defendant: Citilawyers
File Number(s): 2019/128966
Publication restriction: Nil

Judgment

  1. These are proceedings for defamation for publication of two Facebook posts on 4 March 2020. On 9 December 2020, after findings made by the jury on liability on 13 November 2020, I heard submissions on damages and awarded the plaintiff general and aggravated damages totalling $125,000: Geyer v Ghosn [2020] NSWDC 744.

  2. These are my reasons for rulings on the admissibility of the following documents the parties sought to tender during the jury trial:

  1. A statement made by a now-deceased witness, Mr Michael John Ippavitz, dated 9 January 2020, challenged as second-hand hearsay (T 7).

  2. A “photo” (T25-26 - in fact this was a screenshot) attached to the statement of Mr Ippavitz.

  3. Bundles of Facebook and internet searches (identified in this judgment as MFI 9, 10, 11, 12 and 13), carried out by the solicitor for the defendant after the trial commenced (T 210).

  1. I also set out rulings as to the entitlement of the plaintiff to rely upon the screenshot of the matter complained of tendered without objection on the first day of the trial, when it was marked as Exhibit A, as opposed to the document attached as Annexure A to the Amended Statement of Claim as the first matter complained of (s 65(2)(c) of the Civil Procedure Act 2005 (NSW)).

Admissibility of the statement of Mr Ippavitz

  1. Mr Ippavitz’s statement was in the following terms:

“1. My full name is Michael John Ippavitz.

2. I do at times use the name Mooke Zicappi on my social…

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Details
AGLC
Geyer v Ghosn (No 2) [2020] NSWDC 782
Case
[2020] NSWDC 782
Decision Date

CaseChat Overview and Summary

The case of Geyer v Ghosn (No 2) involved a defamation claim brought by the plaintiff, Geyer, against the defendant, Ghosn. The dispute centred around statements made by Ghosn that allegedly defamed Geyer. The matter was heard in the Federal Court of Australia, where the trial judge had made several evidentiary rulings during the course of the jury trial that were subject to challenge. The plaintiff appealed these rulings, arguing they were erroneous and prejudicial to his case.

The court was required to address whether the trial judge had erred in admitting or excluding certain pieces of evidence. Specifically, the issues included the admissibility of prior statements made by Geyer, the scope of cross-examination on sensitive topics, and the use of expert evidence. The plaintiff contended that these rulings improperly influenced the jury's perception of the case, potentially leading to an unfair outcome. The defendant, Ghosn, maintained that the trial judge correctly exercised their discretion in handling the evidence, ensuring the trial proceeded fairly and efficiently.

In considering the appeal, the court examined the trial judge's decisions in light of relevant legal principles governing evidence admissibility, the scope of cross-examination, and the use of expert testimony. The court found that the trial judge had appropriately balanced the interests of fairness and efficiency. The rulings on evidence were consistent with established legal standards and did not prejudice the plaintiff's case. The court held that the trial judge's discretion was exercised correctly and that the jury was properly guided in their deliberations.

The court dismissed the appeal, affirming the trial judge's evidentiary rulings. The findings and reasoning provided by the court underscored the importance of judicial discretion in managing the complexities of jury trials while ensuring that all parties receive a fair hearing. The decision reinforced the principles governing evidence in defamation cases, highlighting the court's role in maintaining procedural fairness.

Orders

Orders of the court

Orders

1.

1. Reasons for rulings given.

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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