Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 Hearing dates: 12 May 2016 Decision date: 18 October 2016 Before: Ward JA at [1] Gleeson JA at [2] Payne JA at [183] Decision: (1) Appeal allowed. (2) Set aside orders 1 and 2 made by Levy SC DCJ on 16 October 2015 and in place, order: (a) Judgment for the plaintiff against the defendant in the sum of $150,000; (b) Defendant to pay the plaintiff's costs of the proceedings on the ordinary basis. (3) Respondent to pay the appellant's costs of the appeal. Catchwords: DEFAMATION – appeal – where defence of failure to accept reasonable offer to make amends upheld at trial – Defamation Act 2005 (NSW) s 18 – challenge to primary judge's finding that offer of amends was reasonable – challenge to finding that defence was available - objective test of reasonableness – s 18(1)(c) – where appellant's willingness to accept offer after withdrawal by respondent sole consideration identified by primary judge – whether offer reasonable – seriousness of defamation and damage to appellant – adequacy of monetary compensation offered – significant disparity between prominence of defamatory matter and proposed apology – whether defence of failure to accept offer of amends required publication of an apology – construction of s 18(2) – whether respondent made offer as soon as practicable – whether subsequent withdrawal of offer precluded respondent's defence at trial – where letter stated offer open until first day of trial unless withdrawn in writing – where offer withdrawn in writing after eight months