Nine Network Australia Pty Ltd v Tabbaa - [2018] NSWCA 243

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nine Network Australia Pty Ltd v Tabbaa [2018] NSWCA 243
Hearing dates: 3 September 2018
Decision date: 25 October 2018
Before: White JA
Decision:
Order that the respondent’s notice of motion filed 11 July 2018 be dismissed with costs.

Catchwords: COSTS – Security for costs – Defamation proceedings – Whether special circumstances exist – Where appellants are impecunious – Whether appeal grounds are reasonably arguable – Whether arguable that the primary judge’s statement to witness at the conclusion of the witness’ evidence in the presence of the jury created procedural unfairness – Where question of public interest arises in relation to the defence of honest opinion under s 31 of the Defamation Act 2005 (NSW) – Application dismissed
Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Defamation Act 2005 (NSW), ss 31, 38
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.50, 51.53
Cases Cited: Carolan v Fairfax Media Publications Pty Ltd (No. 6) [2016] NSWSC 1091
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Fraser v Holmes [2009] NSWCA 36
Holmes v Fraser [2008] NSWSC 570
Lloyd v David Syme Co Ltd [1985] 3 NSWLR 728; [1986] AC 350
Marks-Isaacs v Fowler & Ors [2005] NSWCA 37
Michel v R [2009] UKPC 41; [2010] 1 WLR 879
Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
R v Hayward [2017] NSWSC 1170
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128
Saba v National Australia Bank Limited [1999] NSWCA 93
Soultanov v The Age Co Ltd (2009) 23 VR 182
Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468
Tabbaa v Nine Network Pty Ltd (No 11) [2018] NSWSC 389
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Zaia v Eshow [2017] NSWSC 1540
Texts Cited: David Rolph, Defamation Law (2016) Thomson Reuters
Category: Procedural and other rulings
Parties: Nine Network Australia Pty Limited (Applicant)
Mouhammad Tabbaa (Respondent 2018/16067 and 2018/16076)
Pamela June Tabbaa (Respondent 2018/16080)
Representation:
Counsel:
A Dawson SC with M Cowden (Applicant)
R Rasmussen (Respondents)
Solicitors:
Macpherson Kelley Lawyers (Applicant)
Turner Freeman Lawyers (Appellants)

File Number(s): 2018/16067;2018/16076;2018/16080

Judgment

HIS HONOUR: This is an application for security for costs in relation to three appeals. The respondents to the application (Mr and Mrs Tabbaa) brought defamation proceedings against the applicant (Nine Network).
Mr Mouhammad Tabbaa commenced two defamation proceedings. In the first proceeding (2015/79981) he complained of a segment of a programme “60 Minutes” published by Nine Network on 29 June 2014 with the title “Forced Marriage: An Extraordinary Story of Kidnap, Survival, Escape and Hiding”. He also complained of a publication by Nine Network on the 60 Minutes website on 27 June 2014. (He also complained…

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: [2018] NSWCA 243
Decision Date: 25 October 2018

CaseChat Overview and Summary

Nine Network Australia Pty Ltd (the appellant) sought security for costs against Mr Tabbaa (the respondent) in defamation proceedings before the Court of Appeal of New South Wales. The respondent had been awarded damages in the primary proceedings, and the appellant was appealing this decision. The appellant argued that special circumstances existed warranting security for costs due to the respondent's impecuniosity and the perceived lack of merit in the appeal grounds.

The central legal issue before the Court of Appeal was whether there were special circumstances justifying an order for security for costs against the respondent. This required the court to consider the grounds of appeal, specifically whether they were reasonably arguable, and whether the respondent's financial position warranted such an order. The court also had to assess whether an arguable case of procedural unfairness arose from the primary judge's conduct towards a witness in the presence of the jury, and whether a question of public interest arose in relation to the defence of honest opinion under section 31 of the *Defamation Act 2005* (NSW).

The Court of Appeal dismissed the application for security for costs. The court found that the grounds of appeal were reasonably arguable, particularly concerning the potential procedural unfairness and the public interest element of the honest opinion defence. The court concluded that these arguable grounds, combined with the respondent's impecuniosity, did not constitute special circumstances that would justify ordering security for costs.

Consequently, the Court of Appeal ordered that the respondent's notice of motion filed on 11 July 2018 be dismissed with costs.

Orders

Orders of the court

Order that the respondent’s notice of motion filed 11 July 2018 be dismissed with costs.

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.

Medium Neutral Citation:	Nine Network Australia Pty Ltd v Tabbaa [2018] NSWCA 243
Hearing dates:	3 September 2018
Decision date:	25 October 2018
Before:	White JA
Decision:	Order that the respondent’s notice of motion filed 11 July 2018 be dismissed with costs.
Catchwords:	COSTS – Security for costs – Defamation proceedings – Whether special circumstances exist – Where appellants are impecunious – Whether appeal grounds are reasonably arguable – Whether arguable that the primary judge’s statement to witness at the conclusion of the witness’ evidence in the presence of the jury created procedural unfairness – Where question of public interest arises in relation to the defence of honest opinion under s 31 of the Defamation Act 2005 (NSW) – Application dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29 Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7 Defamation Act 2005 (NSW), ss 31, 38 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.50, 51.53
Cases Cited:	Carolan v Fairfax Media Publications Pty Ltd (No. 6) [2016] NSWSC 1091 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Fraser v Holmes [2009] NSWCA 36 Holmes v Fraser [2008] NSWSC 570 Lloyd v David Syme Co Ltd [1985] 3 NSWLR 728; [1986] AC 350 Marks-Isaacs v Fowler & Ors [2005] NSWCA 37 Michel v R [2009] UKPC 41; [2010] 1 WLR 879 Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 R v Hayward [2017] NSWSC 1170 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 Saba v National Australia Bank Limited [1999] NSWCA 93 Soultanov v The Age Co Ltd (2009) 23 VR 182 Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468 Tabbaa v Nine Network Pty Ltd (No 11) [2018] NSWSC 389 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 Zaia v Eshow [2017] NSWSC 1540
Texts Cited:	David Rolph, Defamation Law (2016) Thomson Reuters
Category:	Procedural and other rulings
Parties:	Nine Network Australia Pty Limited (Applicant) Mouhammad Tabbaa (Respondent 2018/16067 and 2018/16076) Pamela June Tabbaa (Respondent 2018/16080)
Representation:	Counsel: A Dawson SC with M Cowden (Applicant) R Rasmussen (Respondents) Solicitors: Macpherson Kelley Lawyers (Applicant) Turner Freeman Lawyers (Appellants)
File Number(s):	2018/16067;2018/16076;2018/16080