Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414 Hearing dates: 3 November 2015 Decision date: 22 December 2015 Before: Basten JA at [1]; Simpson JA and Tobias AJA at [90] Decision: (1) Appeal allowed.

(2) The order of 17 November 2014 that the defendants pay to the plaintiff damages in the sum of $125,000 be set aside.

(3) In lieu thereof, the defendants pay to the plaintiff damages in the sum of $75,000.

(4) Grant leave to the respondent to appeal against Orders 3 and 4 of the orders made on 31 December 2014.

(5) Set aside Orders 3 and 4 of the orders made on 31 December 2014.

(6) In lieu thereof, order that the appellants pay the respondent's costs of and incidental to the proceedings, to be assessed on the ordinary basis up to and including 6 February 2014, and on an indemnity basis on and from 7 February 2014.

(7) Order that each party pay his or its own costs of the appeal and the summons for leave to appeal. Catchwords: APPEAL – defamation – assessment of damages – amount in issue relatively small – unfavourable credit findings with respect to the plaintiff by the trial judge – whether remittal required – whether substantial miscarriage of justice if no new trial ordered – Uniform Civil Procedure Rules (NSW), r 51.53 – relevance of the costs of new trial and determining the matter of appeal – Civil Procedure Act 2005 (NSW), Pt 6

DEFAMATION – assessment of non-economic damages – mitigation of damages – effect on plaintiff's reputation of imputations found to be true in whole or in part – whether judge impermissibly "netted" imputations – whether relevant findings not made – contextual imputation found not to be true by the jury – whether the trial judge impermissibly took contextual imputation into account