Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle

(2019) 100 NSWLR 155; [2019] NSWCA 172

NSW Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Trial by jury
3. › Application to discharge jury
4. › Closing address going beyond pleaded case
5. › Breach of rule in Browne v Dunn
6. › Factual error in closing address
7. › Cumulative effect of irregularities
8. › Whether curative directions sufficient to prevent miscarriage
1. Defamation
2. › Damages
3. › Aggravated damages
4. › Whether appellable error in failing to award aggravated damages
5. › Relevance of failure to adduce evidence of hurt from publication of verdict
1. Defamation
2. › Statutory qualified privilege
3. › Reasonableness
4. › Whether determined by judge or jury
5. › Meaning of 'general law'
6. › Whether Herald & Weekly Times Ltd v Popovic clearly wrong
7. › Whether reasonableness as element of Lange qualified privilege determined by judge or jury
8. › Defamation Act 2005 (NSW), ss 22, 30
1. Evidence
2. › Rule in Browne v Dunn
3. › Whether each individual inconsistency must be put to witness
4. › Whether discrete basis for disbelieving witness must be put in cross-examination

Quick Take

The question whether reasonableness under s 30(1)(c) of the Defamation Act 2005 (NSW) is for the judge or the jury remains unresolved, but extensive obiter analysis suggests that the reasoning in Herald & Weekly Times Ltd v Popovic does not support the conclusion that reasonableness is for the judge, and that the element of reasonableness in the Lange defence was treated in Theophanous as a question for the jury.