Bristow v Adams [2012] NSWCA 166

Bristow v Adams [2012] NSWCA 166

The appeal was allowed because the trial judge proceeded on the fundamentally incorrect basis that, after Dow Jones & Co Inc v Gutnick, a plaintiff in defamation had to prove actual harm to reputation as an ingredient of the cause of action. Australian defamation law continues to presume damage upon proof of publication of defamatory matter. The respondent's proposed abuse of process contention was not an appropriate basis to uphold the judgment: it was filed out of time, raised a novel point not taken below, and Jameel did not support an abuse of process application first made on appeal after trial. Judgment was therefore entered for the plaintiff in the accepted amount of $10,000.

Jurisdiction
Australia
Judgment Date
22 May 2012
Procedural Posture
Civil Appeal in Defamation / Appeal From an Order of Levy DCJ Dismissing the Appellant's Defamation Action; Appeal Heard Pursuant to Leave Previously Granted
Outcome
Appeal allowed; verdict and judgment for the defendant set aside; verdict and judgment entered for the plaintiff in the sum of $10,000; leave refused for the respondent to rely on the notice of contention filed on 1 December 2011.
Legal Topics
['presumption of Harm in Defamation' 'assessment of Damages' 'abuse of Process' 'notice of Contention Filed Out of Time' 'leave to Appeal']
['defamation' 'torts' 'civil Procedure' 'damages'] ['presumption of Harm in Defamation' 'assessment of Damages' 'abuse of Process' 'notice of Contention Filed Out of Time' 'leave to Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal in Defamation / Appeal From an Order of Levy DCJ Dismissing the Appellant's Defamation Action; Appeal Heard Pursuant to Leave Previously Granted

Legal Issues

  1. 1 ['Whether the trial judge erred in requiring the plaintiff in defamation proceedings to prove actual damage to reputation despite proof of publication of defamatory matter.' 'Whether Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 abolished or displaced the presumption of damage in defamation.' 'Whether leave should be granted to the respondent to rely on a notice of contention filed out of time asserting that the defamation claim should have been dismissed as an abuse of process.' "Whether judgment should be entered for damages in accordance with the trial judge's provisional assessment if the appeal succeeded."]

Ratio Decidendi

The appeal was allowed because the trial judge proceeded on the fundamentally incorrect basis that, after Dow Jones & Co Inc v Gutnick, a plaintiff in defamation had to prove actual harm to reputation as an ingredient of the cause of action. Australian defamation law continues to presume damage upon proof of publication of defamatory matter. The respondent's proposed abuse of process contention was not an appropriate basis to uphold the judgment: it was filed out of time, raised a novel point not taken below, and Jameel did not support an abuse of process application first made on appeal after trial. Judgment was therefore entered for the plaintiff in the accepted amount of $10,000.

Court Disposition

Appeal allowed; verdict and judgment for the defendant set aside; verdict and judgment entered for the plaintiff in the sum of $10,000; leave refused for the respondent to rely on the notice of contention filed on 1 December 2011.

Orders

  • ['Refuse leave for the respondent to rely on its notice of contention filed on 1 December 2011.' 'Appeal allowed.' 'Set aside the verdict and judgment for the defendant made by the trial judge.' 'Order that there be a verdict and judgment for the plaintiff in the sum of $10,000.' 'There be no order for the costs of...