Sarina v O'Shannassy [2021] FCA 1649

Federal Court of Australia

Sarina v O'Shannassy [2021] FCA 1649 Appeal from: Sarina v O'Shannassy (No. 5) [2020] FCCA 2911 Sarina v O'Shannassy (No. 6) [2020] FCCA 3422

File number(s): NSD 1269 of 2020

Judgment of: RARES J

Date of judgment: 19 November 2021

Catchwords: APPEAL AND NEW TRIAL – whether trial judge erred in rejecting unchallenged evidence of three witnesses about same events – whether findings glaringly improbable or contrary to compelling inferences – where judge did not raise any concern with parties about unchallenged evidence before rejecting it DEFAMATION – s 33 of the Defamation Act 2005 (NSW) – whether finding open that unlikely that applicants would suffer any harm where matter complained of written by solicitor accusing applicants of criminal conduct – whether events after publication relevant to circumstances of publication – whether defence under s 33 requires absence of likelihood to harm to reputation only, or reputation and feelings – Held: appeal allowed, matter remitted for assessment of damages

Legislation: Defamation Act 2005 (NSW) ss 28, 30, 31 and 33

Cases cited: Barrow v Bolt [2015] VSCA 107 Hough v London Express Newspapers Limited [1940] 2 KB 507 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lee v Lee (2019) 266 CLR 129 Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 Praed v Graham (1889) 24 QBD 53 Smith v Lucht [2017] 2 Qd R 489 Szanto v Melville [2011] VSC 574 TAL Life Ltd v Sheutrim (2016) 91 NSWLR 439 Trkulja v Google LLC (2018) 263 CLR 149