DEFAMATION – appeal from judgment in respect of three publications found to be seriously defamatory – seven separate defamatory imputations – award of damages including interest totalling $2,872,753.10 – on appeal, apprehension of bias grounds wholly abandoned – whether the primary Judge erred in finding that two of the publications conveyed one of the pleaded imputations – whether the Judge erred in rejecting the appellants’ defence of justification, on the basis of credibility findings – whether the primary Judge had disavowed reliance on witness demeanour in making the credibility findings – whether the Judge erred in finding that the evidence of the appellants’ primary witness was unreliable –whether the Judge erred in finding that the evidence of the primary witness concerning the incidents alleged by the appellants was uncorroborated – whether the Judge erred in finding that a text sent by the respondent to the appellants’ primary witness was not inappropriate – whether the Judge erred in refusing leave to the appellants late in the trial to amend their filed defence so as to raise new particulars of justification.
DAMAGES – assessment of damages for non-economic loss – aggravation of damage – Triggell v Pheeney – whether the pleading of a defence of truth was unjustified – whether publication of contents of defence in newspaper unjustified – matters published recklessly and in a sensationalised and extravagant manner where the appellants had not made adequate inquiries before publication of the matters and had not spoken to the complainant – defence alleging truth filed when the appellants had not still not spoken to the complainant – defence not capable of supporting imputations sought to be justified – no error by the Judge in finding that the conduct in pleading and then publishing allegations in the defence was unjustified.
DAMAGES – assessment of damages for non-economic loss – proper construction of s 35 of the Defamation Act –whether the decision of the Victorian Court of Appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 159; 3 VR 111 is plainly wrong – argument raised for the first time on appeal – whether expedient in the interests of justice to entertain argument – Bauer Media not shown to be plainly wrong.
DAMAGES – assessment of damages for non-economic loss – whether the award of $850,000 for non-economic loss was manifestly excessive – imputations extremely serious – aggravation of harm by the appellants – respondent devastated and distressed – very high award of damages for non-economic loss warranted – little utility in comparing award with other cases – award of $850,000 not beyond what was appropriate.
EVIDENCE – whether opinion evidence of witnesses who knew the respondent was admissible – whether there were undisclosed facts supporting…
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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AGLC
Nationwide News Pty Limited v Rush [2020] FCAFC 115
Case
[2020] FCAFC 115
Decision Date
CaseChat Overview and Summary
In the matter of Nationwide News Pty Ltd v Rush, the appeal was brought by the appellants, Nationwide News Pty Ltd and others, against the judgment of the primary Judge, who found that three publications made by the appellants were seriously defamatory. The respondent, Mr Rush, pursued a defamation claim based on seven defamatory imputations arising from the publications. The primary Judge awarded damages to Mr Rush, including interest, totaling $2,872,753.10. The appellants sought to challenge various aspects of the primary Judge’s findings, including the imputations, credibility assessments, and the reliability of evidence. The appeal also touched upon the assessment of damages for non-economic and economic loss, the admissibility of opinion evidence, and the applicability of certain legal principles.
The central legal issues before the court were whether the primary Judge had erred in identifying the defamatory imputations, assessing credibility, and evaluating the reliability of evidence. Additionally, the court had to determine whether the Judge had correctly assessed damages for non-economic loss, considering the seriousness of the imputations and the appellants' conduct. The appeal also raised questions about the admissibility of opinion evidence from witnesses who knew the respondent and the principles governing the assessment of damages for economic loss. Furthermore, the court examined the justification defence and the publication of the defence contents in the newspaper.
The court concluded that the primary Judge had not erred in his findings regarding the defamatory imputations, credibility assessments, and the reliability of evidence. The court found that the Judge’s approach to the evidence was sound, and there was no basis to conclude that the Judge had disavowed reliance on witness demeanour. The court also upheld the award of $850,000 for non-economic loss, considering the serious nature of the imputations and the harm caused to Mr Rush. The court found no error in the Judge's assessment of damages for economic loss, noting that the incapacity to earn was properly pleaded and maintained at trial. The court rejected the appellants' arguments concerning the admissibility of opinion evidence and the assessment of damages for future economic loss.
The appeal was dismissed, and the parties were directed to confer on the question of costs of the appeal. If the parties could not agree, written submissions were to be filed, and the court would determine the question of costs on the papers. The court ordered that the legal practitioners for the parties confer in relation to the form of orders for costs, and if necessary, the court would receive written submissions and determine the costs on the papers.
Orders
Orders of the court
1. The appeal is dismissed.
2. On or before 10 July 2020 the legal practitioners for the parties confer in relation to the question of costs of the appeal, and the form of orders as to costs that the Court should make.
3. On or before 17 July 2020 the parties file and serve any submissions as to costs, not to exceed three pages.
4. On or before 24 July 2020 the parties file and serve any submissions as to costs in reply, not to exceed three pages.
5. If the parties at any relevant point file an agreed note as to costs, further compliance with Orders 2 to 4 above is dispensed with.
6. Subject to any further order, the question of costs shall be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The appellants’ submission that Mr Rush did not give evidence about the debilitating effect of the publications on his ability to act must be rejected. In the context of the only major role for which he was booked at the time of publications, Mr Rush gave evidence about the wear and tear upon him, and the effect that the publications had on his ability to perform the role. The withdrawal from Twelfth Night occurred only a relatively short time before the first hearing date of the proceeding on 3 September 2018, before it was re-fixed for 22 October 2018. In relation to the evidence about Mr Rush’s withdrawal from Twelfth Night, the appellants had the opportunity to cross examine Mr Rush, and did so, but only to the limited extent set out at [559] above. In these circumstances, there was no unfairness to the appellants, who appear to have made a forensic choice to leave much of the relevant evidence on the topic of Mr Rush’s hurt and his physical and mental state at the time he withdrew from Twelfth Night largely unchallenged. There was therefore no occasion for the Judge to draw any inference that any further evidence of Mr Rush about the topic of his inability to perform would not have assisted his case. The combined force of Mr Rush’s evidence, and the evidence of those who were around him, provided solid support for the Judge’s findings, which have not been shown to be in error.Was there evidence to support the pleaded case that Mr Rush had received no offers of work? Mr Rush gave evidence about the work that was available to him at the time of, and in the period after, the publications. He gave evidence that at the time of the publications he was “waiting for the phone to ring”, of the role he had in Twelfth Night from which he withdrew, and of the offer for the voiceover in the Barrier Reef documentary which was withdrawn from him. He referred to no other offers of work. He was not challenged in cross-examination so as to suggest that he had received any other offers of work in the 11 month period following the publications. Mr Specktor, who was Mr Rush’s American agent, gave evidence about offers for work. At [25] of his written report he stated that:Even If Mr Rush’s case is successful, and he is cleared by the Court. I think there would still be a lag of twelve months or more before he would receive offers for movies at the same rate as before the publication of the articles. Mr Specktor was cross-examined about this paragraph:Q:And can we take it that what you’re saying there is that he would receive offers if he’s cleared by the court, but you think it might be at a lower rate?A:Well, I can’t answer that, because I’m not fielding any offers at the moment. In response to some questions by the Judge, Mr Specktor clarified that when using the word “rate” he was referring to the number of pictures. The cross-examination continued:Q:So what you’re assuming there, Mr Specktor, is that he would receive some offers but not at the same rate. That’s the implication in that sentence, isn’t it?A:You can call it an implication. Okay? I wasn’t quite looking at these things quite in the same way. We’re sitting in a courtroom now, and you’re asking certain things about what’s here. I know what the facts are now. Okay? I really do. I know that he is damaged as a human being. Okay? Damaged as a human being because of this garbage that was in the newspaper. Okay? That much I know, and – and that’s what concerns me. That’s what concerns me about his ability to work. My job is to go get him jobs. Okay? That’s what my job is, not to answer the telephone when somebody calls up.Q:Mr Specktor, the proposition I’m putting to you is this. Would you please attend to it. You believe that, if he’s cleared, he will at least get some offers, but it might not be at the same rate as before for 12 months or more. That’s what you’re trying to say in - - -?---I – I – I believe ..... there’s some lag time to this, but it’s more important – his ability to work, even if he gets offers – this has damaged him. Ask yourself the question if this was you that was in that newspaper.
Decision
Reasons for decision
For the above reasons, Ground 18 is rejected.Conclusions As we stated at the outset, during the hearing of the appeal, the appellants wholly abandoned their grounds alleging apprehended bias. Otherwise, the appellants have failed to sustain any of their other grounds of appeal. The appeal shall therefore be dismissed. When at the hearing of the appeal the Court gave leave to the appellants to file their second further amended notice of appeal, which formally abandoned the claims of apprehended bias, senior counsel for Mr Rush sought costs thrown away on an indemnity basis. At that time, we reserved the question of costs thrown away on an indemnity basis until the determination of the appeal, so that question remains to be considered. We shall direct that the legal practitioners for the parties confer for the purposes of agreeing on orders for costs, or at least narrowing the issues in dispute. That agreement might extend to agreeing costs in a lump sum, or alternatively agreeing that costs should be assessed in a lump sum: Jadwan Pty Ltd v Rae & Partners (A Firm) (No 2) [2020] FCAFC 95 at [9]-[12]; Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 at [19]. If there is no agreement as to the form of orders for costs which should be made, we shall receive written submissions on the question of costs, and, subject to any further order, we shall determine the question of costs on the papers.