Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 Hearing dates: 23 September 2010 Decision date: 24 November 2011 Before: Giles JA at [1], McColl JA at [8], Sackville AJA at [118] Decision: 1) Appeal allowed with costs. 2) Set aside the orders of Harrison J made on 18 December 2009. 3) Enter a verdict for the appellants. 4) Respondents to pay the costs of the proceedings before Harrison J. 5) Remit the matter to the Common Law Division for assessment of damages. [Note: 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 - imputations pleaded as false innuendos - dispute at trial of defences before judge alone as to meaning of imputations found by s 7A jury - whether permissible to determine dispute by reference to extrinsic evidence or only by reference to how the s 7A jury would have inferred the ordinary reasonable reader would have read the matter complained of - DEFAMATION - Defences - Comment - restaurant review - where two restaurants trading under one name - where open to the jury to conclude that ordinary reasonable reader would have read the review to refer to each restaurant - where reviewer only ate at one - where primary judge found each imputation, in the context of the review as a whole, would have been understood by the reader to have been conveyed as a statement of opinion - whether proper material for comment when no facts expressly stated, referred to or notorious in review about one of the restaurants which could form the basis for any of the imputations in respect of it - DEFAMATION - Defences - Comment - when reviewer did not hold opinion concerning one of two restaurants referred to in review - DEFAMATION - Defences - Truth - whether defence of substantial truth established where no evidence as to facts concerning one of two restaurants referred to in review - s 15, Defamation Act 1974 - DEFAMATION - Damages - adequacy Legislation Cited: Defamation Act 1974 Cases Cited: Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225 Besser v Kermode [2011] NSWCA 174 Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 Cassell & Co Ltd v Broome [1972] AC 1027 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165 Hawke v Tamworth Newspapers Co Ltd [1983] 1 NSWLR 699 Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 Howden v "Truth" and "Sportsman" Ltd [1937] HCA 74;(1937) 58 CLR 416 John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 Joseph v Spiller (2010) UKSC 53; [2011] 1 AC 852 Kemsley v Foot [1951] 2 KB 34 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 Lewis v Daily Telegraph Ltd [1964] AC 234 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 Moran v McMahon (1985) 3 NSWLR 700 Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Pryke v Advertiser Newspapers Ltd (1983) 37 SASR 175 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 Sims v Wran [1984] 1 NSWLR 317 Singleton v Ffrench (1986) 5 NSWLR 425 Thompson v Truth & Sportsmen Ltd (No 4) (1932) 34 SR (NSW) 21 Toomey v John Fairfax & Sons Ltd [1985] 1 NSWLR 29 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 Wilkes v Wood [1763] EngR 103; (1763) Lofft 1; 98 ER 489 Texts Cited: Odgers on Libel and Slander, 6th ed (1929) Stevens Category: Principal judgment Parties: Aleksandra Gacic - first appellant Ljiljana Gacic - second appellant Branislav Ciric - third appellant John Fairfax Publications Pty Ltd - first respondent Matthew Evans - second respondent Representation: C A Evatt with R Rasmussen - appellants T Blackburn SC with D Sibtain - respondents David Leamey - appellants Freehills Solicitors - respondents File Number(s): 2004/176936 Publication restriction: No Decision under appeal Citation: Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403 Date of Decision: 2009-12-18 00:00:00 Before: Harrison J File Number(s): SC 20233/2004