Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 Hearing dates: 26 November 2014 Decision date: 24 September 2015 Before: McColl JA, Basten JA and Meagher JA Decision: (1) Allow the appeal in part and set aside the answers given by the jury to questions 3, 4, 5 (other than with respect to (d)) and 6(d).

(2) Set aside orders 1-7 made on 17 March 2014.

(3) Direct that there be a retrial of the proceedings limited to determining:

(a) whether the expressions of opinion, being imputations (a)-(d) found to have been conveyed by the broadcast on 21 May 2008 and to be defamatory of the plaintiff, were based on material which was substantially true; (b) damages with respect to such of imputations (a)-(d) which were not based on material which was substantially true, together with imputations (e)-(g) conveyed by the broadcast on 21 May 2008 and imputation (c) conveyed by the broadcast on 1 October 2009 and defamatory of the plaintiff; and (c) costs of the first trial and the further trial. Catchwords: APPEAL – defamation proceedings – whether jury's findings in relation to defences reasonably open – whether substantial miscarriage of justice – whether appellate court may substitute own findings for those of jury – whether retrial appropriate – Supreme Court Act 1970 (NSW), s 108 – Uniform Civil Procedure Rules 2005 (NSW), r 51.53

DEFAMATION – assessment of damages – harm to reputation and hurt feelings – whether award excessive – assessment not binding during reassessment following retrial

DEFAMATION – defences – honest opinion – distinguishing fact from opinion – whether opinion found in imputation or defamatory matter – whether opinions to be based on facts stated in publication – whether imputations were opinions based on material substantially true – concept of substantial truth in relation to assertion and denial – Defamation Act 2005 (NSW), s 31