Tabbaa v Nine Network Pty Ltd (No 10)

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.