Mohareb v Booth [2020] NSWCA 49

Mohareb v Booth [2020] NSWCA 49

The trial judge erred in upholding the defence based on a late offer to make amends; the offer was not made within statutory time limits, nor as soon as reasonably practicable. The respondent did not pursue alternative defences at trial, and no challenge was raised to essential findings of defamation. The applicant was entitled to judgment on liability; damages to be assessed.

Jurisdiction
Australia
Judgment Date
27 March 2020
Procedural Posture
Appeal / Leave to Appeal and Appeal Adjudicated
Outcome
Leave to appeal granted; appeal allowed; judgment for applicant; damages to be assessed; case remitted for assessment of damages; costs orders made
Legal Topics
['defences' 'offer to Make Amends' 'concerns Notice' 'timeliness' 'procedural Fairness' 'bias' 'judgment and Findings']
['defamation'] ['defences' 'offer to Make Amends' 'concerns Notice' 'timeliness' 'procedural Fairness' 'bias' 'judgment and Findings']

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Procedural Posture

Appeal / Leave to Appeal and Appeal Adjudicated

Legal Issues

  1. 1 ['Whether an offer to make amends was valid under Defamation Act 2005 (NSW) ss 14 and 18' 'Whether statement of claim constituted a concerns notice' 'Whether the offer was made as soon as reasonably practicable' 'Whether denial of jury trial was relevant' 'Whether allegations of actual or apprehended bias should be resolved']

Ratio Decidendi

The trial judge erred in upholding the defence based on a late offer to make amends; the offer was not made within statutory time limits, nor as soon as reasonably practicable. The respondent did not pursue alternative defences at trial, and no challenge was raised to essential findings of defamation. The applicant was entitled to judgment on liability; damages to be assessed.

Court Disposition

Leave to appeal granted; appeal allowed; judgment for applicant; damages to be assessed; case remitted for assessment of damages; costs orders made

Orders

  • ["Grant the applicant leave to appeal from the judgment of the District Court delivered on 1 April 2019 dismissing the applicant's proceedings against the respondent in defamation." 'Allow the appeal and set aside the orders made in the District Court.' 'Give judgment for the plaintiff, with damages to be assessed.'...