Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 Hearing dates: 4 and 5 November 2013 Decision date: 31 March 2014 Before: Macfarlan JA at [1];
Gleeson JA at [90];
Sackville AJA at [91]Decision: The appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: DEFAMATION - television programme concerning plaintiff's conduct towards his wife whilst she was suffering from terminal cancer - damages - whether award of damages manifestly inadequate - whether award outside range of what could reasonably be regarded as appropriate in circumstances of case - whether evidence in mitigation justified conclusion that plaintiff suffered little if any damage - relevance of contextual imputations not found to be true
DEFAMATION - relevance in assessing damages of objective assessment of consequences to plaintiff of publication - relevance of plaintiff's subjective response to publication
DEFAMATION - in assessing damages evidence properly before the Court on other issues may be taken into account in assessing damages - Pamplin v Express Newspapers [1988] 1 WLR 116 and other authorities considered
DEFAMATION - costs - whether trial judge erred in declining to award costs on indemnity basis - relevance of defendant's assessment of prospects of success in assessing costs - Defamation Act 2005 (NSW), s 40(2)(a) - relevance of plaintiff's conduct in proceedings and circumstance that award of damages slightly more than derisory in making differential costs orderLegislation Cited: Defamation Act 2005 (NSW), ss 26, 34, 40 Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Australian Broadcasting Corporation v McBride [2001] NSWCA 322; 53 NSWLR 430
Broome v Cassell [1972] AC 1027
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232
Coulton v Holcombe [1986] HCA 333; 162 CLR 1
Crampton v Nugawela [1996] NSWCA 128; 41 NSWLR 176
Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157
Fox v Percy [2003] HCA 22; 214 CLR 118
Grey v Australian Motorists and General Insurance Co Pty Limited [1976] 1 NSWLR 669
Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024
House v The King [1936] HCA 40; 55 CLR 499
Humphries v TWT Ltd [1993] ACTSC 24; 113 FLR 402
Humphries v TWT…
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- Case
- [2014] NSWCA 90
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the award of damages made at trial was manifestly inadequate, and whether that award fell outside the range of what could reasonably be regarded as appropriate in the circumstances. The court also considered the relevance of evidence in mitigation of damages, including whether contextual imputations not found to be true could justify a conclusion that the plaintiff suffered little or no damage. Furthermore, the court examined the relevance of both the objective assessment of the consequences of the publication to the plaintiff and the plaintiff's subjective response to it in assessing damages. Finally, the court considered whether the trial judge erred in declining to award costs on an indemnity basis, taking into account the defendant's assessment of its prospects of success, the plaintiff's conduct in the proceedings, and the fact that the damages awarded were only slightly more than nominal.
The court reasoned that in assessing damages for defamation, evidence properly before the court on other issues could be taken into account. The court considered authorities such as *Pamplin v Express Newspapers* and concluded that the objective consequences of the publication and the plaintiff's subjective reaction were both relevant. The court found that the award of damages was not manifestly inadequate and was within the range of what could reasonably be regarded as appropriate. Regarding costs, the court held that the trial judge had not erred in declining to award costs on an indemnity basis, considering all the relevant factors.
The appeal was dismissed, and the defendant was awarded costs.
Orders
Orders of the court
The appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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