Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mohareb v Booth [2020] NSWCA 49 Hearing dates: 24 March 2020 Date of orders: 24 March 2020 Decision date: 27 March 2020 Before: Basten JA; White JA; Simpson AJA Decision: (1) Grant the applicant leave to appeal from the judgment of the District Court delivered on 1 April 2019 dismissing the applicant’s proceedings against the respondent in defamation.
(2) Allow the appeal and set aside the orders made in the District Court.
(3) In place thereof, give judgment for the plaintiff, with damages to be assessed.
(4) Remit the matter to the District Court for assessment of damages, with a recommendation that they be determined by a judge other than the trial judge.
(5) Order that the defendant pay the plaintiff’s costs of the trial, assessed on the basis of an unrepresented party.
(6) Order that the respondent pay the applicant’s costs in this Court, assessed on the basis of an unrepresented party.Catchwords: DEFAMATION – defences – offer to make amends – concerns notice – whether statement of claim a concerns notice – offer to be made within 28 days of receiving concerns notice – no valid offer where made after 28 days – Defamation Act 2005 (NSW), s 14(1)
DEFAMATION – defences – offer to make amends – whether made as soon as reasonably practicable after defendant aware that matter might be defamatory –offer made one year after action commenced – Defamation Act 2005 (NSW), s 18(1)
JUDGMENT – findings at trial that elements of claims made out – defence relied on by trial judge not available – other pleaded defences not pursued – defendant forwent opportunity to appear at trial – plaintiff entitled to judgment on liability
PRACTICE AND PROCEDURE – procedural fairness – bias – actual or apprehended – other proceedings affected – other parties not heard – whether allegations should be resolvedLegislation Cited: Defamation Act 2005 (NSW), ss 14, 15, 18, 21, 33; Pt 3, Div 1
Uniform Civil Procedural Rules 2005 (NSW), rr 14.3, 29.2ACases Cited: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Mohareb v Kelso (No. 3) [2018] NSWCA 250
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283Category: Principal judgment Parties: Nader Mohareb (Applicant)
Taylor Booth (Respondent)Representation: Nader Mohareb unrepresented
Taylor Booth no appearance
File Number(s): 2019/131848 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Civil
- Date of Decision:
- 1 April 2019
- Before:
- Curtis ADCJ
- File Number(s):
- 2016/00292950
Judgment
-
THE COURT: On 1 April 2019 Acting District Court Judge Curtis gave judgment for the defendant, Taylor Booth, in defamation proceedings brought against him by the applicant, Nader Mohareb. The applicant seeks leave to appeal from that judgment. The application was set out down for a concurrent hearing with the proposed appeal. At the conclusion of the hearing the court made…
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- AGLC
- Mohareb v Booth [2020] NSWCA 49
- Case
- [2020] NSWCA 49
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the respondent had validly made an offer to make amends under the *Defamation Act 2005* (NSW), and whether such an offer, if made, was made as soon as reasonably practicable. The court also considered whether the respondent's conduct gave rise to a valid defence, and whether the trial judge's findings were sound.
The Court of Appeal found that the respondent's offer to make amends was not made within the 28-day period prescribed by section 14(1) of the *Defamation Act 2005* (NSW) after receiving a concerns notice, and therefore was not a valid offer. Furthermore, the court determined that the offer was not made as soon as reasonably practicable after the respondent became aware that the matter might be defamatory, as it was made approximately one year after the defamation action commenced, contrary to section 18(1) of the Act. Given that the trial judge's relied-upon defence was unavailable and other defences were not pursued, and the defendant had forgone the opportunity to appear at trial, the Court of Appeal concluded that the plaintiff was entitled to judgment on liability.
The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the District Court's orders. It entered judgment for the plaintiff on liability, with damages to be assessed, and remitted the matter to the District Court for assessment of damages, recommending a different judge. The court also made orders regarding the costs of the trial and the appeal.
Orders
Orders of the court
(1) Grant the applicant leave to appeal from the judgment of the District Court delivered on 1 April 2019 dismissing the applicant’s proceedings against the respondent in defamation.
(2) Allow the appeal and set aside the orders made in the District Court.
(3) In place thereof, give judgment for the plaintiff, with damages to be assessed.
(4) Remit the matter to the District Court for assessment of damages, with a recommendation that they be determined by a judge other than the trial judge.
(5) Order that the defendant pay the plaintiff’s costs of the trial, assessed on the basis of an unrepresented party.
(6) Order that the respondent pay the applicant’s costs in this Court, assessed on the basis of an unrepresented party.
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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