Tabbaa v Nine Network Australia Pty Ltd - [2019] NSWCA 69

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69
Hearing dates: 28 March 2019
Date of orders: 11 April 2019
Decision date: 11 April 2019
Before: Basten JA at [1];
Gleeson JA at [88];
Payne JA at [89]
Decision:
(1)   Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16067.

(2)   Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16076.

(3)   Order that Mouhammad Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to his appeals in this Court.

(4)   Order that the appeal by Pamela June Tabbaa in matter no. 2018/16080 be dismissed.
(5)   Order that Pamela June Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to her appeal in this Court.
Catchwords:
APPEAL — grounds — apprehended bias — conduct of judge before the jury – judge read evidence of one witness to later witness — whether a reasonable fair-minded observer might apprehend bias – whether conduct indicated that judge might have accepted the evidence as true

APPEAL – defendant’s submission on point of law not contradicted – whether reasonable opportunity for plaintiffs to challenge submission – challenge raised but not pursued – whether party bound by counsel’s conduct at trial – whether substantial miscarriage warranting retrial

DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether “public interest” element satisfied — whether judgement entered before that element determined – element to be determined by judge – whether element in dispute – later judgment gave reasons for upholding element

DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether opinion provided defence to whole of defamatory matter — finding by trial judge that opinion not a complete defence not applied – whether substantial miscarriage warranting retrial
DEFAMATION — damages — mitigation of damages for prior award — whether damages aggravated by knowledge of falsity of defamatory statements – whether judge erred in making no award of damages for defamatory imputations
Legislation Cited:
Defamation Act 1958 (NSW), s 24
Defamation (Amendment) Act 1909 (ACT), s 7
Defamation Act 2005 (NSW), ss 4, 6, 22, 25, 26, 31, 38
Supreme Court Act 1970 (NSW), ss 75A, 101, 102
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Balic (No 2) (1994) 75 A Crim R 515
Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
MJD v Regina [2006] NSWCCA 151
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Piccolotto v The Queen [2015] VSCA 143
R v Mawson [1967]…

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: [2019] NSWCA 69
Decision Date: 11 April 2019

CaseChat Overview and Summary

The appeal concerned allegations of apprehended bias arising from the conduct of the trial judge, who read evidence from one witness to another. The plaintiffs, Mouhammad Tabbaa and Pamela June Tabbaa, alleged this conduct suggested the judge had already accepted the evidence as true, leading to a reasonable apprehension of bias. The defendants, Nine Network Australia Pty Ltd, also raised points of law regarding the defence of honest opinion under section 31 of the Defamation Act 2005 (NSW), including whether the "public interest" element was satisfied and whether the opinion provided a defence to the whole of the defamatory matter. The court was required to determine if these issues constituted a substantial miscarriage of justice warranting a retrial.

The Court of Appeal, comprising Basten, Gleeson, and Payne JJA, considered whether the judge's conduct in reading evidence to a witness could lead a fair-minded and informed observer to apprehend bias. It also examined whether the plaintiffs had been afforded a reasonable opportunity to challenge a legal submission made by the defendant, and whether they were bound by their counsel's conduct at trial. Furthermore, the court assessed whether the trial judge had erred in upholding the "public interest" element of the honest opinion defence and whether the finding that the opinion was not a complete defence had been correctly applied. Finally, the court reviewed the trial judge's decision regarding damages, specifically whether any award should have been made for defamatory imputations and whether damages were aggravated by the knowledge of the falsity of the statements.

The Court of Appeal dismissed the appeals brought by both Mouhammad Tabbaa and Pamela June Tabbaa. The judges found no apprehended bias in the trial judge's conduct, concluding that a reasonable observer would not have formed such an apprehension. The court also determined that the plaintiffs had been afforded a reasonable opportunity to challenge the defendant's legal submissions and were bound by their counsel's actions at trial. The trial judge's findings regarding the honest opinion defence, including the satisfaction of the "public interest" element and its scope, were upheld. Consequently, the court found no substantial miscarriage of justice. The plaintiffs were ordered to pay the costs of the respondent.

Orders

Orders of the court

(1) Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16067.

(2) Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16076.

(3) Order that Mouhammad Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to his appeals in this Court.

(4) Order that the appeal by Pamela June Tabbaa in matter no. 2018/16080 be dismissed.

(5) Order that Pamela June Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to her appeal in this Court.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69
Hearing dates:	28 March 2019
Date of orders:	11 April 2019
Decision date:	11 April 2019
Before:	Basten JA at [1]; Gleeson JA at [88]; Payne JA at [89]
Decision:	(1) Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16067. (2) Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16076. (3) Order that Mouhammad Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to his appeals in this Court. (4) Order that the appeal by Pamela June Tabbaa in matter no. 2018/16080 be dismissed. (5) Order that Pamela June Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to her appeal in this Court.
Catchwords:	APPEAL — grounds — apprehended bias — conduct of judge before the jury – judge read evidence of one witness to later witness — whether a reasonable fair-minded observer might apprehend bias – whether conduct indicated that judge might have accepted the evidence as true APPEAL – defendant’s submission on point of law not contradicted – whether reasonable opportunity for plaintiffs to challenge submission – challenge raised but not pursued – whether party bound by counsel’s conduct at trial – whether substantial miscarriage warranting retrial DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether “public interest” element satisfied — whether judgement entered before that element determined – element to be determined by judge – whether element in dispute – later judgment gave reasons for upholding element DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether opinion provided defence to whole of defamatory matter — finding by trial judge that opinion not a complete defence not applied – whether substantial miscarriage warranting retrial DEFAMATION — damages — mitigation of damages for prior award — whether damages aggravated by knowledge of falsity of defamatory statements – whether judge erred in making no award of damages for defamatory imputations
Legislation Cited:	Defamation Act 1958 (NSW), s 24 Defamation (Amendment) Act 1909 (ACT), s 7 Defamation Act 2005 (NSW), ss 4, 6, 22, 25, 26, 31, 38 Supreme Court Act 1970 (NSW), ss 75A, 101, 102 Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Balic (No 2) (1994) 75 A Crim R 515 Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 MJD v Regina [2006] NSWCCA 151 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Piccolotto v The Queen [2015] VSCA 143 R v Mawson [1967]…