Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920

Supreme Court New South Wales

Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920 Hearing dates: 10/12/12; 31/1/13; 1/2/13; 7/3/13 Decision date: 19 December 2013 Jurisdiction: Common Law Before: Hall J Decision: 1. Judgment be entered in favour of the first plaintiff on the basis of an award of damages in the amount of $160,000. 2. Judgment be entered in favour of the second plaintiff on the basis of an award of damages in the amount of $160,000. 3. Judgment be entered in favour of the third plaintiff on the basis of an award of damages in the amount of $160,000. 4. Plaintiffs directed to bring in Short Minutes of Order to give effect to these reasons for judgment. Catchwords: DEFAMATION - assessment of damages - where decision at first instance overturned by Court of Appeal and matter remitted back for assessment of damages - restaurant review found to be defamatory of three plaintiffs in respect of two different restaurants operated by them - whether findings made at first instance can support plea in mitigation of damages - findings made at first instance as to statements of opinion of restaurant reviewer are not findings of fact - such findings had no notoriety until judgment at first instance delivered - such findings are not evidence of bad reputation of the plaintiffs - whether plaintiffs entitled to aggravated damages - article removed after Court of Appeal judgment but later restored - continued internet publication after Court of Appeal judgment increased harm caused by original publication - such conduct by first defendant was "unjustified" in light of circumstances of case - aggravated damages awarded Legislation Cited: Civil Liability (Non-economic Loss) Order 2010 Civil Liability Act 2002 Defamation Act 1974 Motor Accidents Compensation (Determination of Loss) Order No 3 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Burstein v Times Newspaper Ltd [2001] 1 WLR 579 Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44 Cassall and Co Ltd [1972] AC 1027 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 Convery v The Irish News Limited [2008] NICA 14 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 Gacic v John Fairfax Publishing Pty Ltd [2009] NSWSC 1403 Goody v Oldhams Press Ltd (1967) 1 QB 333 Gray v Motor Accident Commission (1998) 196 CLR 1 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Prehn v Royal Bank of Liverpool (1870) LR 5 Ex 92 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rookes v Barnard [1964] AC 1129 Selecta Homes and Building Co Pty Ltd v Advertiser Weekend Publishing Co Pty Ltd (2001) SASC 140 Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398 Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 Triggell v Pheeney (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd [1965]-[1966] 117 CLR 118 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Texts Cited: Gatley on Libel and Slander p 842 para 33.26 Category: Principal judgment Parties: Aleksandra Gacic (First Plaintiff) Ljiljana Gacic (Second Plaintiff) Branislav Ciric (Third Plaintiff) John Fairfax Publications Pty Ltd (First Defendant) Matthew Evans (Second Defendant) Representation: Counsel: CA Evatt; R Rasmussen; C Dibb (Plaintiffs) TD Blackburn SC; D Sibtain (Defendants) Solicitors: McKenzie Leamey Solicitors & Barristers (Plaintiffs) Banki Haddock Fiori (Defendants) File Number(s): 2004/176936