Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69 Hearing dates: 28 March 2019 Date of orders: 11 April 2019 Decision date: 11 April 2019 Before: Basten JA at [1]; Gleeson JA at [88]; Payne JA at [89] Decision: (1) Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16067.

(2) Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16076.

(3) Order that Mouhammad Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to his appeals in this Court.

(4) Order that the appeal by Pamela June Tabbaa in matter no. 2018/16080 be dismissed.

(5) Order that Pamela June Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to her appeal in this Court. Catchwords: APPEAL — grounds — apprehended bias — conduct of judge before the jury – judge read evidence of one witness to later witness — whether a reasonable fair-minded observer might apprehend bias – whether conduct indicated that judge might have accepted the evidence as true

APPEAL – defendant's submission on point of law not contradicted – whether reasonable opportunity for plaintiffs to challenge submission – challenge raised but not pursued – whether party bound by counsel's conduct at trial – whether substantial miscarriage warranting retrial

DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether "public interest" element satisfied — whether judgement entered before that element determined – element to be determined by judge – whether element in dispute – later judgment gave reasons for upholding element