Bristow v Adams

[2012] NSWCA 166

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Defamation
3. › Damages
4. › Presumption of harm arising from proof of publication
5. › Whether presumption abolished by Dow Jones & Co Inc v Gutnick
6. › Whether proof of actual damage to reputation required to establish liability
1. Practice and Procedure
2. › Notice of contention
3. › Leave to rely on notice of contention filed out of time
4. › Novel point raised for first time on appeal
5. › Considerations relevant to grant or refusal of leave
1. Practice and Procedure
2. › Abuse of process
3. › Application at hearing of appeal that claim should have been dismissed as abuse of process
4. › Whether Jameel v Dow Jones & Co Inc applies in Australian law
5. › Whether open to defendant to raise abuse of process for first time on appeal after completed trial
6. › Civil Procedure Act 2005 (NSW), ss 56-58
7. › Defamation Act 2005 (NSW), s 33
1. Appeal
2. › Leave to appeal
3. › Grant of leave where point of fundamental principle involved
4. › Whether appropriate to grant leave where costs of appeal exceed amount in dispute

Quick Take

The common law presumption that damage to reputation is presumed upon proof of publication of defamatory matter remains part of Australian law and was not abolished by the High Court's decision in Dow Jones & Co Inc v Gutnick. A plaintiff in defamation is not required to prove actual damage to reputation as a necessary ingredient of the cause of action. The question whether the presumption is irrebuttable under Australian law was expressly left open.