Brien v Mrad [2020] NSWCA 259

Brien v Mrad [2020] NSWCA 259

The primary judge erred in applying the wrong test for variance between pleaded and proved defamatory words by focusing on the difference in substance of imputations rather than whether the words proved were substantially the same as those pleaded. On the facts, the words proved were substantially to the like effect as the words pleaded, and thus the applicant's cause of action was made out. The damages assessment of $15,000 was correct, and the matter should not be remitted for aggravated damages. Indemnity costs were not warranted as the respondent did not act unreasonably in refusing the applicant's settlement offer.

Parties
Applicant: Martin Brien; Respondent: Hussein Mrad (aka Sam Mrad)
Jurisdiction
Australia
Judgment Date
21 October 2020
Procedural Posture
Civil Appeal / Court of Appeal Judgment Following District Court Decision
Outcome
Appeal partially allowed; judgment for applicant; damages awarded; costs to applicant
Legal Topics
Variance Between Pleaded and Proved Defamatory Words, Assessment of General and Aggravated Damages, Principles of Pleading in Defamation, Standard for Granting Leave to Appeal, Costs in Defamation Proceedings
Defamation Variance Between Pleaded and Proved Defamatory Words Assessment of General and Aggravated Damages Principles of Pleading in Defamation Standard for Granting Leave to Appeal Costs in Defamation Proceedings

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 6 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Martin Brien

Applicant

Hussein Mrad (aka Sam Mrad)

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment Following District Court Decision

Legal Issues

  1. 1 What is the correct test to assess variance between defamatory words pleaded and those proved?
  2. 2 Did the primary judge err in finding a 'fatal variance' between the words pleaded and those proved?
  3. 3 Was the assessment of general and aggravated damages appropriate?

Ratio Decidendi

The primary judge erred in applying the wrong test for variance between pleaded and proved defamatory words by focusing on the difference in substance of imputations rather than whether the words proved were substantially the same as those pleaded. On the facts, the words proved were substantially to the like effect as the words pleaded, and thus the applicant's cause of action was made out. The damages assessment of $15,000 was correct, and the matter should not be remitted for aggravated damages. Indemnity costs were not warranted as the respondent did not act unreasonably in refusing the applicant's settlement offer.

Court Disposition

Appeal partially allowed; judgment for applicant; damages awarded; costs to applicant

Orders

  • Leave to appeal granted on ground 1 of the draft notice of appeal
  • Leave to appeal refused on ground 2 of the draft notice of appeal