John Fairfax Publications Pty Ltd v O'Shane (No 2)

In *John Fairfax Publications Pty Ltd v O'Shane (No 2)*, the New South Wales Court of Appeal considered an appeal concerning a defamation claim brought by Mr O'Shane against John Fairfax Publications Pty Ltd. The dispute arose from articles published by the appellant which Mr O'Shane alleged were defamatory. The appeal concerned the assessment of damages following a partial success for the appellant on its defence of comment, with four of the eight original imputations remaining at issue.

The Court of Appeal was required to determine whether a reduction in the number of defamatory imputations established necessarily mandated a reduction in the quantum of damages awarded. Furthermore, the Court had to consider whether it was appropriate to assess damages by reference to awards made in other defamation cases. The application of section 46A of the *Defamation Act* was also a point of discussion.

The Court reasoned that while a reduction in the number of proven imputations could influence the overall assessment of damages, it did not automatically require a proportional reduction. The significance and impact of the remaining imputations were crucial considerations. The Court also affirmed that while comparisons with other defamation awards could be a useful, albeit imperfect, guide, the unique circumstances of each case, including the nature of the defamatory material, the plaintiff's standing, and the extent of publication, were paramount in determining appropriate damages.

The Court of Appeal ordered that the judgment for the plaintiff for $175,000 stand, and that the defendant pay the plaintiff's costs of the proceedings at first instance. The respondent was ordered to pay 25% of the appellant's costs of the appeal and was granted a certificate under the *Suitors Fund Act* if otherwise qualified.