Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99

Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99

The Court allowed both the appeal and cross-appeal. The primary judge erred by failing to award aggravated damages for hurt caused by respondents' failure to apologise and by not awarding exemplary damages for continued online publication after all defences failed, but also erred by failing to account for certain factual findings about food and service that mitigated harm. The appropriate damages were reassessed accordingly, with exemplary damages awarded, a $20,000 increase for aggravated damages, and a $5,000 reduction for mitigation; the main component was backdated to 18 December 2009 and the exemplary component to 22 June 2012.

Jurisdiction
Australia
Judgment Date
16 April 2015
Procedural Posture
Appeal and Cross Appeal (civil, Defamation) / Court of Appeal Decision After Remittal for Damages Assessment and Cross Appeal on Mitigation
Outcome
Appeal allowed; Cross-appeal allowed; Damages reassessed; Orders as per reasons.
Legal Topics
['defamation' 'damages Assessment' 'aggravated Damages' 'exemplary Damages' 'mitigation of Damages' 'interest on Judgments']
['tort Law' 'media Law'] ['defamation' 'damages Assessment' 'aggravated Damages' 'exemplary Damages' 'mitigation of Damages' 'interest on Judgments']

Case Brief

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Procedural Posture

Appeal and Cross Appeal (civil, Defamation) / Court of Appeal Decision After Remittal for Damages Assessment and Cross Appeal on Mitigation

Legal Issues

  1. 1 ['Whether the primary judge erred in the assessment and award of damages for defamation including compensatory, aggravated, and exemplary damages; whether the continued publication of defamatory material justified exemplary damages; whether factual matters relating to the quality of food and service mitigated damages; whether interest should be backdated on the damages awarded']

Ratio Decidendi

The Court allowed both the appeal and cross-appeal. The primary judge erred by failing to award aggravated damages for hurt caused by respondents' failure to apologise and by not awarding exemplary damages for continued online publication after all defences failed, but also erred by failing to account for certain factual findings about food and service that mitigated harm. The appropriate damages were reassessed accordingly, with exemplary damages awarded, a $20,000 increase for aggravated damages, and a $5,000 reduction for mitigation; the main component was backdated to 18 December 2009 and the exemplary component to 22 June 2012.

Court Disposition

Appeal allowed; Cross-appeal allowed; Damages reassessed; Orders as per reasons.

Orders

  • ['Judgments at first instance on damages and interest set aside.' 'Judgment to be entered for each appellant in an amount to be determined with $175,000 dating from 18 December 2009 and exemplary damages of $20,000 as from 22 June 2012.' 'If parties agree on quantum and interest, consent order to be filed within 7...