Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29

Supreme Court New South Wales

Medium Neutral Citation: Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Hearing dates: 21, 22, 24, 25, 28, 29, 30 September;1, 2, 7 October 2015. Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Common Law Before: McCallum J Decision: Verdict for the plaintiff in the sum of $100,000 Catchwords: DEFAMATION - defences - defence of qualified privilege at common law - where Commissioner of police agreed with editor of major newspaper that it would be useful to have photographs of persons involved in a protest published in the newspaper to assist police to identify those persons - whether article including photographs was published on an occasion of qualified privilege

DEFAMATION - damages - defamatory imputation that plaintiff as one of an angry mob took part in a riot - whether damages mitigated by truth of imputation that plaintiff participated in a violent protest - whether damages mitigated by other conduct in evidence at the trial - assessment of damages

DEFAMATION - defences - defence of contextual truth - whether a plaintiff's imputation proved substantially true at trial must be available to be relied upon by a defendant as a contextual imputation - where no defence of contextual truth pleaded prior to commencement of trial

PROCEDURE - mode of trial - where defendant elected to have action for defamation tried by jury - application by plaintiff for a jury of twelve - rejection of assumption that jurors will not give Muslims a fair trial - rejection of assumption that risk of prejudice or bigotry is diluted in a larger group of jurors Legislation Cited: Defamation Act 1974 (NSW) Defamation Act 2005 (NSW) Jury Act 1977 (NSW) Summary Offences Act 1988 (NSW) Summary Offences Regulation 2000 (NSW) Cases Cited: Adam v Ward [1917] AC 309 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Balzola v Federal Capital Press of Australia Pty Ltd [2015] NSWDC 23 Balzola v Federal Capital Press of Australia Pty Ltd (No 2) (District Court, Gibson DCJ, 27 August 2015, unreported) Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Cheikho v Nationwide News Pty Ltd (No 3); Haddad v Nationwide News Pty Ltd (No 3) [2015] NSWSC 146 El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 The Federal Capital Press of Australia v Balzola [2015] NSWCA 285 Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 Joseph v Spiller [2012] EWHC 2958 Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197 O'Shaughnessy v Mirror Newspapers Ltd [1969] 1 NSWR 421 Pamplin v Express Newspapers Ltd [1988] WLR 116 Prince v Malouf [2014] NSWCA 12 Ra v Nationwide News Pty Ltd [2009] FCA 1308 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 Toogood v Spyring (1834) 1 CR M&R 183 Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469 Wood v Channel Seven Sydney Pty Ltd; Wood v National News Pty Ltd [2014] NSWSC 1527 Category: Principal judgment Parties: Wisam Haddad (Plaintiff) Nationwide News Pty Ltd (Defendant) Representation: Counsel: T Molomby SC with R Rasmussen (Plaintiff) T Blackburn SC with L Barnett (Defendant)