Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

New South Wales Court of Appeal

CITATION: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

HEARING DATE(S): 5 March 2010

JUDGMENT DATE: 7 December 2010

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 2; McColl JA at 11; McClellan CJ at CL at 282; Bergin CJ in Eq at 283

DECISION: 1. Appeal allowed in part. 2. Set aside order 3 below, and in lieu thereof verdict for the respondent in respect of the third publication (the programme) of $125,000. 3. Direct the parties to calculate interest on the revised damages in accordance with these reasons and file short minutes of order setting out the substituted judgment within seven days of these reasons. 4. Reserve the costs of the appeal and the trial. 5. (a) Appellant to file and serve written submissions limited to five pages in length concerning costs (in this Court and at trial) within seven days; (b) respondent to file and serve written submissions also limited to five pages in length concerning such costs within 14 days. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: DEFAMATION – defences – substantial truth – whether necessary to prove each element of imputation a matter of substantial truth – whether element a material part of the imputation – whether sting of imputation proven to be a matter of substantial truth – Defamation Act 1974 (NSW), s 15 - DEFAMATION – defences – contextual truth – whether by reason of the substantial truth of one imputation remaining imputations did not further injure reputation – Defamation Act 1974 (NSW), s 16 - DEFAMATION – damages – mitigation of damages – evidence of bad reputation – identification of scope of reputation capable of being harmed by imputations – whether evidence of bad reputation goes to relevant sector of reputation - DEFAMATION – damages – mitigation of damages – evidence of bad reputation – post-publication evidence of bad reputation – correctness of Rochfort v John Fairfax & Sons Pty Ltd [1972] 1 NSWLR 16 - DEFAMATION – damages – mitigation of damages – bad reputation – use of judicial findings made in other civil proceedings - DEFAMATION – damages – mitigation of damages – bad reputation – use of evidence properly before the court on some other issue - DEFAMATION – damages – continuing nature of damages for injury to reputation and hurt to feelings - DEFAMATION – damages – where separate publications – assessment of amount to be awarded - DEFAMATION – damages – whether damages excessive