Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362

Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362

It was open to the jury to conclude that ordinary reasonable readers would have understood the review and the pleaded imputations to refer to both the Coco and Roco restaurants within Coco Roco. As the reviewer, Mr Evans, did not dine at Roco and did not express opinions about it, there was no proper material for comment or for substantial truth as to Roco and thus the defences failed. The primary judge erred in using extrinsic material to determine the meaning of imputations and in not applying the jury’s meanings. The outcome is that the respondents did not establish the defences and the appeal is allowed.

Jurisdiction
Australia
Judgment Date
24 November 2011
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
['false Innuendo' 'comment Defence' 'substantial Truth' 'damages' 'assessment of Damages']
['defamation'] ['false Innuendo' 'comment Defence' 'substantial Truth' 'damages' 'assessment of Damages']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the imputations pleaded refer to one or two restaurants' 'Whether the defences of comment and substantial truth were correctly determined as to the meaning of the imputations' 'Whether the comment defence could be established where the reviewer did not dine at one of the two restaurants and did not express an opinion about it' 'Whether substantial truth defence could be made out without evidence as to facts concerning both restaurants' 'Adequacy of damages assessment']

Ratio Decidendi

It was open to the jury to conclude that ordinary reasonable readers would have understood the review and the pleaded imputations to refer to both the Coco and Roco restaurants within Coco Roco. As the reviewer, Mr Evans, did not dine at Roco and did not express opinions about it, there was no proper material for comment or for substantial truth as to Roco and thus the defences failed. The primary judge erred in using extrinsic material to determine the meaning of imputations and in not applying the jury’s meanings. The outcome is that the respondents did not establish the defences and the appeal is allowed.

Court Disposition

Appeal allowed

Orders

  • ['Appeal allowed with costs.' 'Set aside the orders of Harrison J made on 18 December 2009.' 'Enter a verdict for the appellants.' 'Respondents to pay the costs of the proceedings before Harrison J.' 'Remit the matter to the Common Law Division for assessment of damages.']