Geyer v Ghosn (No 3) - [2020] NSWDC 766

District Court

New South Wales

Medium Neutral Citation: Geyer v Ghosn (No 3) [2020] NSWDC 766
Hearing dates: 18 December 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Vary order 1 of the orders dated 9 December 2020 to provide that the judgment sum of $125,000 include interest at the rate of 3% ($6,739.73), making a total of $131,739.73.
(2) The defendant pay 90% of the plaintiff’s costs of these proceedings on an indemnity basis; as to the remaining 10%, each party pay his or her own costs.

Catchwords:
TORT – defamation – award to plaintiff of $125,000 damages for Facebook post – interest at 3% awarded on judgment sum – application for indemnity costs – plaintiff successful on first but not on second claim – degree of overlap between the matters complained of - s 40 Defamation Act 2005 - defendant fails to respond to, or to make, any offers – whether defendant’s conduct of the proceedings warranted the making of indemnity costs orders – defendant ordered to pay 90% of the plaintiff’s costs on an indemnity basis

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Defamation Act 2005 (NSW), s 3, s 40
Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 1

Cases Cited:
Ahmadi v Fairfax Media Publications Pty Ltd (No 2) [2010] NSWSC 1191
Australasian Barristers Chambers Pty Ltd [2019] NSWSC 799
Cosco v Hutley(No 3) [2020] NSWSC
Geyer v Ghosn [2020] NSWDC 744
Goldsworthy v Radio 2UE Sydney Pty Limited & Anor [1999] NSWSC 772
Hockey v Fairfax (No 2) [2015] FCA 750
In the matter of J & Lee Property Investment Group Pty Limited (in liquidation) [2019] NSWSC 927
McGaw v Channel Seven Sydney Pty Ltd [2007] NSWSC 1270
Mohareb v Booth [2020] NSWCA 49
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Nazerali v Mitchell [2016] BCSC 2424
Oshlack v Richmond River Council (1998) 193 CLR 72
Roache v News Group Newspapers [1998] EMLR 161
Saunders v Legal Profession Admission Board (No 2) [2016] NSWSC 27
Speight v Gosnay (1891) 60 LJQB 231

Texts Cited:
Gatley on Libel and Slander

Category: Costs
Parties: Plaintiff: Montanna Maxlee Geyer
Defendant: Fouad Ghosn
Representation:
Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Mr J Cohen
Solicitors:
Plaintiff: Brydens Law
Defendant: Citilawyers

File Number(s): 2019/128966
Publication restriction: Nil

Judgment

Judgment on interest and costs

The plaintiff commenced proceedings for defamation for two Facebook posts published on 4 March 2019. The sole basis for defence was denial of defamatory meaning and of publication. A jury of four persons found that the defendant had published the first (but not the second) of the two posts and that the following imputations were conveyed and defamatory:

(i) The plaintiff was intimately involved in the Tyrone May sex scandal;
(ii) The plaintiff is the girl in the Tyrone May sex video;
(iii) The plaintiff is a person who has been exposed to viewers as the woman filmed having sex…

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.

Continue reading Geyer v Ghosn (No 3)

Details

AGLC: Geyer v Ghosn (No 3) [2020] NSWDC 766
Case: [2020] NSWDC 766
Decision Date: 18 December 2020

CaseChat Overview and Summary

The plaintiff, Geyer, sued Ghosn for defamation over a Facebook post. The Federal Circuit and Family Court of Australia was tasked with deciding the matter. The court had to determine the amount of interest to be added to the judgment sum awarded to Geyer, and whether Ghosn’s conduct of the proceedings warranted an indemnity costs order.

The court found that the plaintiff was entitled to interest on the judgment sum at a rate of 3%. The court also considered the degree of overlap between the defamatory imputations and the proportionality of the costs incurred by the plaintiff in relation to the successful and unsuccessful claims. Given that Ghosn did not respond to any offers made by Geyer, the court assessed the conduct of the proceedings and concluded that Ghosn’s conduct warranted the making of an indemnity costs order.

The court varied the earlier order to include interest at the rate of 3% on the judgment sum of $125,000, resulting in a total of $131,739.73. Additionally, the court ordered Ghosn to pay 90% of Geyer’s costs on an indemnity basis, with each party to bear their own costs for the remaining 10%.

Orders

Orders of the court

(1) Vary order 1 of the orders dated 9 December 2020 to provide that the judgment sum of $125,000 include interest at the rate of 3% ($6,739.73), making a total of $131,739.73.

(2) The defendant pay 90% of the plaintiff’s costs of these proceedings on an indemnity basis; as to the remaining 10%, each party pay his or her own costs.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Geyer v Ghosn (No 3) [2020] NSWDC 766
Hearing dates:	18 December 2020
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Vary order 1 of the orders dated 9 December 2020 to provide that the judgment sum of $125,000 include interest at the rate of 3% ($6,739.73), making a total of $131,739.73. (2) The defendant pay 90% of the plaintiff’s costs of these proceedings on an indemnity basis; as to the remaining 10%, each party pay his or her own costs.
Catchwords:	TORT – defamation – award to plaintiff of $125,000 damages for Facebook post – interest at 3% awarded on judgment sum – application for indemnity costs – plaintiff successful on first but not on second claim – degree of overlap between the matters complained of - s 40 Defamation Act 2005 - defendant fails to respond to, or to make, any offers – whether defendant’s conduct of the proceedings warranted the making of indemnity costs orders – defendant ordered to pay 90% of the plaintiff’s costs on an indemnity basis
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Defamation Act 2005 (NSW), s 3, s 40 Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 1
Cases Cited:	Ahmadi v Fairfax Media Publications Pty Ltd (No 2) [2010] NSWSC 1191 Australasian Barristers Chambers Pty Ltd [2019] NSWSC 799 Cosco v Hutley(No 3) [2020] NSWSC Geyer v Ghosn [2020] NSWDC 744 Goldsworthy v Radio 2UE Sydney Pty Limited & Anor [1999] NSWSC 772 Hockey v Fairfax (No 2) [2015] FCA 750 In the matter of J & Lee Property Investment Group Pty Limited (in liquidation) [2019] NSWSC 927 McGaw v Channel Seven Sydney Pty Ltd [2007] NSWSC 1270 Mohareb v Booth [2020] NSWCA 49 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Nazerali v Mitchell [2016] BCSC 2424 Oshlack v Richmond River Council (1998) 193 CLR 72 Roache v News Group Newspapers [1998] EMLR 161 Saunders v Legal Profession Admission Board (No 2) [2016] NSWSC 27 Speight v Gosnay (1891) 60 LJQB 231
Texts Cited:	Gatley on Libel and Slander
Category:	Costs
Parties:	Plaintiff: Montanna Maxlee Geyer Defendant: Fouad Ghosn
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr J Cohen Solicitors: Plaintiff: Brydens Law Defendant: Citilawyers
File Number(s):	2019/128966
Publication restriction:	Nil