Wade v R
[2018] NSWCCA 85
Para 40
…CTV film is lost or unavailable and that, in those circumstances, secondary evidence of CCTV film may be given, for the reasons explained in Wade v R (2014) 41 VR 13. In the present case, there are compelling reasons for doing so, as Jackson Barakat actually saw the plaintiff performing the acts shown on the CCTV,…
Google Inc v Duffy
[2017] SASCFC 130
Para 126
…ut in Urbanchich v Drummoyne Municipal Council were recently considered by the Full Court of the South Australian Supreme Court in Google Inc v Duffy [2017] SASCFC 130 at [131] where the court noted the formulation for liability in accordance with the principles in Urbanchich v Drummoyne Municipal Council requires t…
Wilson v Bauer Media Pty Ltd
[2017] VSC 521
Para 1
…The plaintiff seeks aggravated damages and argues that if such damages are awarded, the cap does not apply ( Wilson v Bauer Media Pty Ltd [2017] VSC 521);…
Sheales v The Age
[2017] VSC 380
Para 219
…3 per Kyrou J at [603]-[608]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 per McCallum J at [127]; Sheales v The Age Co Ltd [2017] VSC 380 per John Dixon J at [70]. Both counsel urge me not to follow Bell J in Attrill v Christie , although this appears to be contrary to the language of s…
Al Muderis v Duncan (No 3)
[2017] NSWSC 726
Para 220
…of s 41 in relation to aggravated damages by Applegarth J in Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 and Rothman J in Al Muderis v Duncan (No 3) [2017] NSWSC 726. Section 41 has now been interpreted as taking the cap out of contention all together where an award of aggravated damages is to be made. The relevan…
Carolan v Fairfax Media Publications Pty Ltd (No 6)
[2016] NSWSC 1091
Para 219
…se a scaling exercise on lower awards: Cripps v Vakras [2015] VSC 193 per Kyrou J at [603]-[608]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 per McCallum J at [127]; Sheales v The Age Co Ltd [2017] VSC 380 per John Dixon J at [70]. Both counsel urge me not to follow Bell J in Attrill v Chr…
Dank v Nationwide News Pty Ltd
[2016] NSWSC 295
Para 239
…t accept Ms Chrysanthou’s submissions that any amount should be nominal. Nor would I award zero dollars in damages ( Dank v Nationwide News Pty Ltd [2016] NSWSC 295) as proposed in her schedule of damages. I must have regard to the relevant features of judicial awards which are pushing damages upwards, including th…
Miller v R
[2015] NSWCCA 206
Para 35
…vidence is increasingly common in civil cases ( QBE Insurance (Australia) Limited v Orcher [2013] NSWCA 478) and in criminal proceedings ( Miller v R [2015] NSWCCA 206). It is not footage prepared for the specific purpose of surveillance of a particular individual (as to which, see Justice Young, P.W., “ Disclosure…
R v Veerman
[2015] VSC 193
Para 219
…1386. Since that time, the cap has come to be interpreted as a simple cut off and does not impose a scaling exercise on lower awards: Cripps v Vakras [2015] VSC 193 per Kyrou J at [603]-[608]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 per McCallum J at [127]; Sheales v The Age Co Ltd […
Hamilton v State of New South Wales (No 3)
[2014] NSWSC 1915
Para 35
…vestigation of a crime, CCTV footage has nevertheless been considered to amount to a business record ( Hamilton v State of New South Wales (No 3) [2014] NSWSC 1915). (I note that the same challenges to CCTV authenticity (at [4] ff) and pursuant to s 135 (at [22]) as those made by Mr Dibb in these proceedings were ma…
Lower Murray Urban and Rural Water Corporation v Di Masi
[2014] VSCA 104
…Rural Water Corp v Di Masi; Lower Murray Urban and Rural Water Corp v Belbin; Lower Murray Urban and Rural Water Corp v Marciano (2014) 43 VR 348 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McGlen-McLeod v Galloway [2012] NSWCA 368 Miller v R [2015] NSWCCA 206 Nichols v J J Newberry Co, 150 F…
Holt v TCN Channel Nine Pty Ltd
[2014] NSWCA 90
Para 243
…in support of that defence can still be relied upon: Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 at 120; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [32].…
QBE v Orcher
[2013] NSWCA 478
Para 35
…ises, as well as in many public areas. The tender of CCTV evidence is increasingly common in civil cases ( QBE Insurance (Australia) Limited v Orcher [2013] NSWCA 478) and in criminal proceedings ( Miller v R [2015] NSWCCA 206). It is not footage prepared for the specific purpose of surveillance of a particular ind…
Cao v Liu
[2013] NSWDC 172
Para 125
…third parties for material published by other persons even where that is done with the knowledge or consent of the third party involved. In Cao v Liu [2013] NSWDC 172 the defendant claimed not to know anything about how emails worked, but was aware her husband had set up an email account in her own name, and had ta…
Coles Supermarkets Australia Pty Ltd v Clarke
[2013] NSWCA 272
Para 159
…A similar problem arose in Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272, where the sole witness called by the plaintiff in relation to a claim by store staff of stealing did not hear the matter complained of. This issue of publication to a third party was not directly addressed in the appeal but i…
McGlen-McLeod v Galloway
[2012] NSWCA 368
Para 83
…In McGlen-McLeod v Galloway [2012] NSWCA 368 Tobias A-JA cited with approval the observations of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]–[74] concerning findings of credit of witnesses:…
Dillon v Boland; Dillon v Cush
[2012] NSWCA 364
Para 16
…ions to the contrary in the New South Wales Court of Appeal, particularly in defamation proceedings (as to which see Dillon v Boland; Dillon v Cush [2012] NSWCA 364; Ainsworth v Burden [2005] NSWCA 174; TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682; see also the observations of Mr Tobin QC as to the freque…
Bristow v Adams
[2012] NSWCA 166
Para 241
…iven details, those judgments are, however, particularly helpful. I particularly note the New South Wales Court of Appeal decision in Bristow v Adams [2012] NSWCA 166; although this included a component for aggravated damages, the reasoning involved is not only helpful but a useful measuring stick, although the ext…
Dubois v R & V Bergin Pty Ltd
[2011] NSWCA 309
Para 16
…South Wales (Law Society of NSW, Sydney 1990), but also in proceedings for damages in tort generally (as to which see Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309). In Photi v Target Australia Pty Ltd [2006] NSWDC 265 at [16], Mr Evatt, one of the most experienced barristers in this field, consented to the additi…
Beaven v Fink
[2009] NSWDC 218
Para 242
…Appropriate awards would be $7,500 for the first publication and $2,500 for the second publication (see Beaven v Fink [2009] NSWDC 218 for a comparable verdict, a slander to a neighbour), making a total of $10,000.…
Bennette v Cohen
[2009] NSWCA 60
…l v Hawkesbury City Council [2008] NSWCA 130 Attrill v Christie [2007] NSWSC 1386 Beaven v Fink [2009] NSWDC 218 Bennette v Cohen [2009] NSWCA 60 Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 Bristow v Adams [2012] NSWCA 166 Byrne v Deane [1937] 1 KB 818 Cao v Liu [2013] NSWDC 172 Carolan v Fa…
Davis v Nationwide News Pty Ltd
[2008] NSWSC 693
Para 230
…Prior to Wilson v Bauer Media Pty Ltd , these issues were first considered in Davis v Nationwide News Pty Ltd [2008] NSWSC 693, where McLellan CJ at CL noted the difficulties in relation to a cap where there was more than one publication and a claim for aggravated damages was made, adding (at [18]-[20]):…
Blacktown City Council v Hocking
[2008] NSWCA 144
Para 51
…be cautious about making assumptions as to handwriting without the benefit of expert evidence ( Angel v Hawkesbury City Council [2008] NSWCA 130; Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956), the similarities between her handwriting (Exhibit 10) and the writing at the top and bottom of the poster are strong.…
Angel v Hawkesbury City Council
[2008] NSWCA 130
Para 51
…While judges must be cautious about making assumptions as to handwriting without the benefit of expert evidence ( Angel v Hawkesbury City Council [2008] NSWCA 130; Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956), the similarities between her handwriting (Exhibit 10) and the writing at the top an…
Lumbers v W Cook Builders Pty Ltd (in liq)
[2008] HCA 27
Para 16
…arly in defamation proceedings (as to which see Dillon v Boland; Dillon v Cush [2012] NSWCA 364; Ainsworth v Burden [2005] NSWCA 174; TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682; see also the observations of Mr Tobin QC as to the frequency of adjournments on the first day of the trial at p. 49 of Aspects of the Law…
Attrill v Christie
[2007] NSWSC 1386
Para 219
…raction between s 34 and the cap was that the cap was not merely a ceiling but a range in which general damages should be awarded: Attrill v Christie [2007] NSWSC 1386. Since that time, the cap has come to be interpreted as a simple cut off and does not impose a scaling exercise on lower awards: Cripps v Vakras [201…
Ainsworth v Burden
[2005] NSWCA 174
Para 16
…Wales Court of Appeal, particularly in defamation proceedings (as to which see Dillon v Boland; Dillon v Cush [2012] NSWCA 364; Ainsworth v Burden [2005] NSWCA 174; TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682; see also the observations of Mr Tobin QC as to the frequency of adjournments on the first day…
Rogers v Nationwide News Pty Ltd
[2003] HCA 52
Para 217
…nsolation of hurt to feelings, recompense for damage to reputation and vindication of the plaintiff’s reputation ( Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] per Hayne J (Gleeson CJ and Gummow J agreeing)).…
Skalkos v Assaf (No 2)
[2002] NSWCA 236
…478 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rookes v Barnard [1964] AC 1129 Sheales v The Age Co Ltd [2017] VSC 380 Skalkos v Assaf (2002) Aust Torts Reports 81-644 TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Umeyor v Ibe [2016] EWHC 862 U…
Jarratt v John Fairfax Publications Pty Ltd
[2001] NSWSC 739
…d damages is available at general law. I discussed the principles relevant to aggravated damages in Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 739 where I said: 113 The law recognises two elements of compensatory damages: ordinary and aggravated damages. In Bickel v John Fairfax & Sons Limited & Anor…
Marsden v Amalgamated Television Services Pty Ltd
[2001] NSWSC 510
Para 84
…rd to the nature of those lies in the manner considered appropriate in the decisions discussed in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510. I do not regard him as a reliable or honest witness. However, I do not consider he is lying about saying that the plaintiff was stealing when he knew…
TCN Channel 9 Pty Limited v Antoniadis
[1997] NSWCA 306
Para 16
…oceedings (as to which see Dillon v Boland; Dillon v Cush [2012] NSWCA 364; Ainsworth v Burden [2005] NSWCA 174; TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682; see also the observations of Mr Tobin QC as to the frequency of adjournments on the first day of the trial at p. 49 of Aspects of the Law of Defamatio…
Jones v Dunkel
[1959] HCA 9
…ew South Wales (No 3) [2014] NSWSC 1915 Henry v Minett (1910) 13 GLR (NZ) 138 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 Jones v Dunkel (1959) 101 CLR 298 Lower Murray Urban and Rural Water Corp v Di Masi; Lower Murray Urban and Rural Water Corp v Belbin; Lower Murray Urban and Rural Water Corp v Marciano (2014)…
Jones v Dunkel
[1959] HCA 8
Para 111
…Ms Chrysanthou asks me to draw a Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298) from the plaintiff’s failure to call her sister-in-law.…
Triggell v Pheeney
[1951] HCA 23
Para 17
…pensatory damages may be awarded if the defendant's conduct is "improper, unjustifiable or lacking in bona fides" ( Vacik at [17]; Triggell v Pheeney (1951) 82 CLR 497 at 514). 115 The correct approach to aggravated damages was explained by Higgins J in Costello and Abbott v Random House Pty Limited (1999) 137 ACTR…
Webb v Bloch
[1928] HCA 50
Para 78
…he premises and had put up the notice in question. The amendment in question takes into account the broad definition of publication in Webb v Bloch (1928) 41 CLR 331 for those who are in any degree accessory to publication, including by lending assistance to the existence of the publication or “by any means whatever…
Herald and Weekly Times Limited v McGregor
[1928] HCA 36
…sometimes thought relevant only to aggravated damages are in fact relevant to ordinary compensatory damages: See Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 considered by Clarke JA in Australian Consolidated Press Ltd v Ettinghausen (Court of Appeal, unreported, 13 October 1993 at p 25). 117 As the High C…
Uren v John Fairfax & Sons Pty Ltd
[1966] HCA 40
…sen (Court of Appeal, unreported, 13 October 1993 at p 25). 117 As the High Court noted in Gray at 4; in Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 at 149, Windeyer J observed that the distinction between aggravated and exemplary damages is "not easy to make in defamation, either historically or…
Costello Abbott & Ors v Random House Australia Pty Ltd
[1999] ACTSC 13
…1951) 82 CLR 497 at 514). 115 The correct approach to aggravated damages was explained by Higgins J in Costello and Abbott v Random House Pty Limited (1999) 137 ACTR 1 at 46 where his Honour said: The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focus…
[2006] NSWDC 265
[2006] NSWDC 265
Para 16
…in proceedings for damages in tort generally (as to which see Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309). In Photi v Target Australia Pty Ltd [2006] NSWDC 265 at [16], Mr Evatt, one of the most experienced barristers in this field, consented to the addition of a defence of qualified privilege during the heari…
[1937] 1 KB 818
[1937] 1 KB 818
Para 124
…Mr Dibb also relies upon the principles set out in Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035 and Byrne v Deane [1937] 1 KB 818 to submit that the defendant failed or refused to remove the poster in circumstances in which he assumed responsibility for its publication.…
[1964] AC 1129
[1964] AC 1129
Para 229
…The distinction between various categories of damages has been clarified by Devlin LJ in Rookes v Barnard [1964] AC 1129. Where the injury done to the plaintiff has been exacerbated by the conduct of the defendant, thereby attracting higher compensatory damages, a largely sum may be awarded. That larger sum shoul…
[1988] 1 WLR 116
[1988] 1 WLR 116
Para 243
…he plea of justification fails, the evidence put forward in support of that defence can still be relied upon: Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 at 120; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [32].…