Ward JA at [1] Gleeson JA at [2] Payne JA at [183]
Decision:
(1) Appeal allowed. (2) Set aside orders 1 and 2 made by Levy SC DCJ on 16 October 2015 and in place, order: (a) Judgment for the plaintiff against the defendant in the sum of $150,000; (b) Defendant to pay the plaintiff’s costs of the proceedings on the ordinary basis. (3) Respondent to pay the appellant’s costs of the appeal.
Catchwords:
DEFAMATION – appeal – where defence of failure to accept reasonable offer to make amends upheld at trial – Defamation Act 2005 (NSW) s 18 – challenge to primary judge’s finding that offer of amends was reasonable – challenge to finding that defence was available - objective test of reasonableness – s 18(1)(c) – where appellant’s willingness to accept offer after withdrawal by respondent sole consideration identified by primary judge – whether offer reasonable – seriousness of defamation and damage to appellant – adequacy of monetary compensation offered – significant disparity between prominence of defamatory matter and proposed apology – whether defence of failure to accept offer of amends required publication of an apology – construction of s 18(2) – whether respondent made offer as soon as practicable – whether subsequent withdrawal of offer precluded respondent’s defence at trial – where letter stated offer open until first day of trial unless withdrawn in writing – where offer withdrawn in writing after eight months
DEFAMATION – appeal – identification – challenge to primary judge’s factual finding that defamatory matter identified appellant– whether matter complained of was published of and concerning the appellant– where article under prominent and sensational headline and containing appellant’s name, trade and location – where also containing incorrect age and photograph – where evidence of appellant carrying on trade and advertising in district since 1970s – whether ordinary reasonable reader would understand article as referring to the appellant – standards of ordinary reasonable reader – probability of two people in same district with same name carrying on same trade – whether appellant required witness evidence of identification – where finding by primary judge that appellant identified by name in article – reasonableness of appellant’s witnesses’ evidence
[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
AGLC
Zoef v Nationwide News Pty Ltd [2016] NSWCA 283
Case
[2016] NSWCA 283
Decision Date
CaseChat Overview and Summary
The appeal in *Zoef v Nationwide News Pty Ltd* concerned a defamation action brought by the appellant against the respondent. The primary judge had upheld the respondent's defence under section 18 of the *Defamation Act 2005* (NSW), which relates to offers to make amends. The appellant challenged both the finding that the offer of amends was reasonable and the availability of the defence itself. Additionally, the appellant challenged the primary judge's factual finding that the defamatory material identified him.
The legal issues before the Court of Appeal included whether the primary judge erred in finding that the respondent's offer to make amends was reasonable, considering the seriousness of the defamation and the inadequacy of the monetary compensation offered, particularly in light of the disparity between the prominence of the defamatory matter and the proposed apology. The court also considered whether the defence under section 18 required the publication of an apology and whether the respondent made the offer as soon as practicable. Furthermore, the court examined whether the respondent's subsequent withdrawal of the offer precluded its defence, given the terms of the offer letter. Finally, the court reviewed the primary judge's finding that the defamatory article identified the appellant, assessing whether an ordinary reasonable reader would understand the article, despite containing an incorrect age and photograph, as referring to the appellant, who had been trading in the relevant district since the 1970s.
The Court of Appeal allowed the appeal, finding that the primary judge had erred in upholding the defence of failure to accept a reasonable offer to make amends. The court determined that the offer made by the respondent was not reasonable in the circumstances, particularly given the nature and impact of the defamation. The court also found that the defamatory matter was published of and concerning the appellant, overturning the primary judge's finding on this point. Consequently, the court set aside the orders of the primary judge and entered judgment for the appellant.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside orders 1 and 2 made by Levy SC DCJ on 16 October 2015 and in place, order:
(a) Judgment for the plaintiff against the defendant in the sum of $150,000;
(b) Defendant to pay the plaintiff’s costs of the proceedings on the ordinary basis.
(3) Respondent to pay the appellant’s costs of the appeal.