Tabbaa v Nine Network Pty Ltd (No.10) [2018] NSWSC 468
Hearing dates:
20-24 and 27-30 November 2017; 1, 4-8, 11-15 and 18-21 December 2017; 5 February 2018
Date of orders:
19 April 2018
Decision date:
19 April 2018
Jurisdiction:
Common Law
Before:
Fagan J
Decision:
In proceeding No 2015/79981 the further orders of the Court are:
1. The plaintiff’s notice of motion filed 4 January 2018 is dismissed. 2. The parties’ costs of the notice of motion filed 4 January 2018 are to be costs in the proceeding. 3. For the purpose of assessing costs under the order for costs made 21 December 2018, one half of the hearing time of the trial and of the post-trial hearing on 5 February 2018 is to be attributed to this proceeding.
In proceeding No 2015/181496 the further orders are:
1. The plaintiff’s notice of motion filed 4 January 2018 is dismissed. 2. The plaintiff’s damages under the judgment entered in his favour on 21 December 2017 are assessed at nil. 3. The parties are each to bear their own costs of this proceeding including their costs of the plaintiff’s notice of motion filed 4 January 2018.
Catchwords:
DEFAMATION – defences – honest opinion – opinion “not honestly held” – whether defendant had reasonable grounds to believe opinion was “not honestly held” – no evidence opinion was not honestly held – “matter of public interest” – whether opinion related to “matter of public interest” – forced marriage and attitudes to premarital relations – scope of defence of honest opinion – whether defence applies to individual opinionative imputations where defamatory imputations of fact conveyed by the same publication – issue not determined due to delayed application inconsistent with conduct at trial
DEFAMATION – practice and procedure – application to have certain jury answers and judgment set aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – where ground of alleged error in judgment not raised at trial or before entry of judgment
DEFAMATION – remedies – compensatory damages – damage to reputation – injury to feeling – where publication partly justified – mitigating effect of imputations found true – mitigating effect of compensation already received from third party republishing defamatory material – Defamation Act 2005 (NSW), s 38(1)(e) – where third-party compensation greater than damages that would be assessed
COSTS – party-party – bases of quantification – ordinary basis – where plaintiff partially successful in defamation proceedings – where compensation already received from third party – where conduct of both sides resulted in prolonged proceedings – application for costs on indemnity basis – where Calderbank offer made – one week for acceptance – where offeree unrepresented at time of offer – whether non-acceptance unreasonable
[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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Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468
Case
[2018] NSWSC 468
Decision Date
CaseChat Overview and Summary
The plaintiff, Tabbaa, initiated defamation proceedings against Nine Network Pty Ltd, seeking damages for a broadcast that included statements implying she had engaged in premarital sex. The case was heard in the Supreme Court of New South Wales. The defendants raised several defences, including honest opinion and matters of public interest. The court considered whether the defendants had reasonable grounds to believe that the opinion was not honestly held and whether the opinion related to a matter of public interest. The court found that there was no evidence to suggest the opinion was not honestly held, and the opinion did not pertain to a matter of public interest as it did not address a subject of general concern. However, the court did not determine the applicability of the defence of honest opinion to individual opinionative imputations where defamatory imputations of fact were conveyed by the same publication, as the issue was not raised during the trial.
The court also addressed a procedural matter concerning an application to have certain jury answers and the judgment set aside under the Uniform Civil Procedure Rules 2005 (NSW), rule 36.16. The application was denied because the ground of alleged error in judgment was not raised at trial or before the entry of judgment. Regarding damages, the court assessed compensatory damages for damage to reputation and injury to feelings, taking into account the mitigating effect of the imputations found to be true and the compensation already received from a third party who republished the defamatory material. Under the Defamation Act 2005 (NSW), section 38(1)(e), the court found that the third-party compensation was greater than the damages that would have been assessed. Finally, the court considered the costs, noting that the plaintiff was partially successful, and both parties' conduct led to prolonged proceedings. The plaintiff's application for costs on an indemnity basis was denied, and the court found that the non-acceptance of a Calderbank offer was not unreasonable given the circumstances.