Reported Decision:
[2001] ACL Rep 145 NSW 41
52 NSWLR 373
New South Wales
Court of Appeal
CITATION: John Fairfax & Sons Ltd & Anor v Vilo [2001] NSWCA 290 FILE NUMBER(S): CA 40869/00 HEARING DATE(S): 16, 17 August 2001 JUDGMENT DATE:
12 September 2001PARTIES :
John Fairfax & Sons Ltd (First Appellant)
David Syme & Co Ltd (Second Appellant)
Enn Vilo (Respondent)JUDGMENT OF: Handley JA at 1; Giles JA at 2; Heydon JA at 3
LOWER COURT JURISDICTION : Supreme Court LOWER COURT
FILE NUMBER(S) :SC 17027/83 LOWER COURT
JUDICIAL OFFICER :Simpson J
COUNSEL: Mr W H Nicholas QC/Mr J S Wheelhouse (Appellants)
Mr C A Evatt/Mr T Molomby/Mr G Hansen (Respondent)SOLICITORS: Mallesons Stephen Jaques (Appellants)
Leitch Hasson & Dent (Respondent)CATCHWORDS: Torts - Defamation - Appeal against decision of jury - Damages - Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury's finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial - Defamation Act 1974 (NSW), s 16 - Supreme Court Rules 1970 (NSW), Pt 51 r 23(1) - Torts - Defamation - Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out - Whether publishers' actions were "reasonable" - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts - Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b) - Evidence - Relevance - Representations - Form - Discretion - Evidence Act 1995 ss 55, 57, 65 and 135 - D LEGISLATION CITED: Defamation Act 1974
Evidence Act 1898
Evidence Act 1995
Human Rights Act 1998 (UK)
Motor Accidents Act 1988
Workers Compensation Act 1987CASES CITED: Browne v Dunn (1893) 6 R 67
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497
Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Midalco Pty Ltd v Rabendt [1989] VR 461
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Plato Films Ltd v Speidel [1961] AC 1090
Reynolds v Times Newspapers Ltd [2001] 2 AC 127; [1999] 3 WLR 1010
Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 and 16) (1988) 14 NSWLR 107
Singleton v Ffrench (1986) 5 NSWLR 425
Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722
TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682
Tobias v Allen (No 2) [1957] VR 21
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697DECISION: Appeal dismissed. Appellants to pay the respondent's costs of the appeal.
THE…
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CaseChat Overview and Summary
John Fairfax & Sons Ltd and Anor v Vilo concerned an appeal to the New South Wales Court of Appeal from a jury verdict in a defamation action. The respondent, Mr Vilo, had sued the appellants, publishers of a newspaper, for defamation. The jury had found that the newspaper had defamed Mr Vilo and awarded him damages. The appellants sought to appeal this verdict, arguing that the damages awarded were manifestly excessive and that the jury's finding that a contextual imputation was untrue was perverse, leading to a miscarriage of justice that warranted a new trial.
The Court of Appeal was required to determine several legal issues. These included whether the quantum of damages awarded by the jury was so excessive as to demonstrate a failure to exercise reasonable judgment, and whether the jury's finding that a particular imputation, which the appellants argued was a contextual imputation, was untrue was perverse. The appellants also raised issues concerning the trial judge's directions to the jury regarding the range of damages that could be awarded in personal injury verdicts, and whether the judge should have directed the jury to consider separate verdicts for the various imputations made against the respondent. Furthermore, the court considered whether the statutory and common law defences of qualified privilege were made out, and whether the publishers' actions could be considered "reasonable" in the context of these defences.
The Court of Appeal dismissed the appeal. The judges reasoned that the jury's findings were not perverse and that the damages awarded, while substantial, were not so excessive as to justify interference by the appellate court. The court applied the principles governing appeals against jury verdicts in defamation cases, emphasising the deference owed to the jury's assessment of damages and factual findings, particularly where those findings are not demonstrably unreasonable or unsupported by evidence. The court found no error in the trial judge's directions to the jury, nor in the refusal to order separate verdicts for each imputation. The defences of qualified privilege were also found not to have been made out on the facts presented.
Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.
The Court of Appeal was required to determine several legal issues. These included whether the quantum of damages awarded by the jury was so excessive as to demonstrate a failure to exercise reasonable judgment, and whether the jury's finding that a particular imputation, which the appellants argued was a contextual imputation, was untrue was perverse. The appellants also raised issues concerning the trial judge's directions to the jury regarding the range of damages that could be awarded in personal injury verdicts, and whether the judge should have directed the jury to consider separate verdicts for the various imputations made against the respondent. Furthermore, the court considered whether the statutory and common law defences of qualified privilege were made out, and whether the publishers' actions could be considered "reasonable" in the context of these defences.
The Court of Appeal dismissed the appeal. The judges reasoned that the jury's findings were not perverse and that the damages awarded, while substantial, were not so excessive as to justify interference by the appellate court. The court applied the principles governing appeals against jury verdicts in defamation cases, emphasising the deference owed to the jury's assessment of damages and factual findings, particularly where those findings are not demonstrably unreasonable or unsupported by evidence. The court found no error in the trial judge's directions to the jury, nor in the refusal to order separate verdicts for each imputation. The defences of qualified privilege were also found not to have been made out on the facts presented.
Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
Appeal dismissed. Appellants to pay the respondent's costs of the appeal.
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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