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Mizikovsky v Queensland Television Ltd

Mizikovsky v Queensland Television Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68

PARTIES:

LEV MIZIKOVSKY
(appellant)
v
QUEENSLAND TELEVISION LIMITED
ACN 009 674 373
(first respondent)
TCN CHANNEL NINE PTY LTD
ACN 001 549 560
(second respondent)
GENERAL TELEVISION CORPORATION PTY LTD
ACN 004 330 036
(third respondent)
SWAN TELEVISION & RADIO BROADCASTERS PTY LTD
ACN 008 689 745
(fifth respondent)
NINE NETWORK AUSTRALIA PTY LTD
ACN 008 685 407
(sixth respondent)

FILE NO/S:

Appeal No 11686 of 2011
Appeal No 11714 of 2011
SC No 8404 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2012

JUDGES:

Holmes and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed with costs in Appeal No 11686/11.

2. Appeal allowed with costs in Appeal No 11714/11, and vary Order No 2 made in the Trial Division on 9 December 2011 by substituting the words “a standard basis” for the words “the indemnity basis”.

CATCHWORDS:

DEFAMATION – JUSTIFICATION – SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH – where appellant sued respondents for defamation in a television broadcast – where, after a jury trial, judgment was entered for the respondents against the appellant – where appellant argued trial judge failed to direct jury that they should only take into account defamatory imputations which had not been found to be true in determining whether appellant’s reputation had not been further harmed because of substantial truth of contextual imputations – where appellant argued trial judge erred in failing to direct jury that, in considering defence of contextual truth, they were to consider only those contextual imputations which they found to be defamatory – where appellant argued that trial judge erred in failing to include question to jury as to whether any of the contextual imputations which jury found to have been conveyed were also defamatory – where appellant argued trial judge erred in so directing jury as to how it should determine defence of contextual truth that jury would have included all contextual imputations which they found to be conveyed, irrespective of whether defamatory or not, in addition to appellant’s defamatory imputations they found to be conveyed, irrespective of whether or not they were true – where appellant argued trial judge erred in failing to direct jury so that they would turn their attention to reputation damage occasioned by conveying of contextual imputations only to the extent that those contextual imputations were defamatory – where appellant argued trial judge erred in failing to direct jury, as soon as correction was sought, that counsel for respondents had wrongly put to jury that sheer number of complaints from customers was indicative of truth of imputation as to incompetence of appellant’s building company – whether the trial judge erred

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION…

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.

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Details

Case: [2013] QCA 68
Decision Date: 2 April 2013

CaseChat Overview and Summary

In the case of Mizikovsky v Queensland Television Ltd, the appellant, Mr. Mizikovsky, sought to challenge the defamation claim brought against the respondents, Queensland Television Ltd. The dispute centred on a television broadcast which the appellant claimed had defamed him. After a jury trial, judgment was entered in favour of the respondents. The appellant's primary contention on appeal was that the trial judge had failed to properly direct the jury regarding the defences of substantial truth and contextual truth in defamation law. Specifically, the appellant argued that the trial judge had not ensured that the jury considered only the defamatory imputations in assessing whether the substantial truth of the contextual imputations had caused additional harm to his reputation. The appellant further contended that the trial judge had erred by not including a specific question for the jury on whether any of the contextual imputations found to be conveyed were also defamatory. Additionally, the appellant argued that the trial judge had incorrectly directed the jury on how to determine the defence of contextual truth, potentially leading the jury to include non-defamatory imputations in their assessment.

The court examined the arguments regarding the trial judge's directions to the jury and found that the trial judge had indeed failed to properly direct the jury on certain aspects of the defence of contextual truth. The court concluded that the trial judge's directions had caused a misdirection, which could have affected the jury's assessment of the defences. Consequently, the appeal regarding the defence of contextual truth was allowed. However, the appeal was dismissed in relation to the costs awarded on an indemnity basis, as the trial judge had not erred in awarding costs given the appellant's refusal to accept a settlement offer before the trial.

The court ordered that the appeal be dismissed with costs in Appeal No 11686/11, while the appeal was allowed with costs in Appeal No 11714/11. The order also varied the costs assessment to be on a standard basis rather than the indemnity basis previously awarded.

Orders

Orders of the court

1. Appeal dismissed with costs in Appeal No 11686/11.

2. Appeal allowed with costs in Appeal No 11714/11, and vary Order No 2 made in the Trial Division on 9 December 2011 by substituting the words “a standard basis” for the words “the indemnity basis”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68
PARTIES:	LEV MIZIKOVSKY (appellant) v QUEENSLAND TELEVISION LIMITED ACN 009 674 373 (first respondent) TCN CHANNEL NINE PTY LTD ACN 001 549 560 (second respondent) GENERAL TELEVISION CORPORATION PTY LTD ACN 004 330 036 (third respondent) SWAN TELEVISION & RADIO BROADCASTERS PTY LTD ACN 008 689 745 (fifth respondent) NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 (sixth respondent)
FILE NO/S:	Appeal No 11686 of 2011 Appeal No 11714 of 2011 SC No 8404 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 April 2012
JUDGES:	Holmes and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed with costs in Appeal No 11686/11. 2. Appeal allowed with costs in Appeal No 11714/11, and vary Order No 2 made in the Trial Division on 9 December 2011 by substituting the words “a standard basis” for the words “the indemnity basis”.
CATCHWORDS:	DEFAMATION – JUSTIFICATION – SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH – where appellant sued respondents for defamation in a television broadcast – where, after a jury trial, judgment was entered for the respondents against the appellant – where appellant argued trial judge failed to direct jury that they should only take into account defamatory imputations which had not been found to be true in determining whether appellant’s reputation had not been further harmed because of substantial truth of contextual imputations – where appellant argued trial judge erred in failing to direct jury that, in considering defence of contextual truth, they were to consider only those contextual imputations which they found to be defamatory – where appellant argued that trial judge erred in failing to include question to jury as to whether any of the contextual imputations which jury found to have been conveyed were also defamatory – where appellant argued trial judge erred in so directing jury as to how it should determine defence of contextual truth that jury would have included all contextual imputations which they found to be conveyed, irrespective of whether defamatory or not, in addition to appellant’s defamatory imputations they found to be conveyed, irrespective of whether or not they were true – where appellant argued trial judge erred in failing to direct jury so that they would turn their attention to reputation damage occasioned by conveying of contextual imputations only to the extent that those contextual imputations were defamatory – where appellant argued trial judge erred in failing to direct jury, as soon as correction was sought, that counsel for respondents had wrongly put to jury that sheer number of complaints from customers was indicative of truth of imputation as to incompetence of appellant’s building company – whether the trial judge erred APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION…