Zoef v Nationwide News Pty Ltd

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.