Nationwide News Pty Limited v Rush

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 02 July 2020
• Neutral Citation: [2020] FCAFC 115
• Date: 02 July 2020

FEDERAL COURT OF AUSTRALIA

Nationwide News Pty Limited v Rush [2020] FCAFC 115

Appeal from:	Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496
File number:	NSD 679 of 2019
Judges:	WHITE, GLEESON AND WHEELAHAN JJ
Date of judgment:	2 July 2020
Catchwords:	DEFAMATION – appeal from judgment in respect of three publications found to be seriously defamatory – seven separate defamatory imputations – award of damages including interest totalling $2,872,753.10 – on appeal, apprehension of bias grounds wholly abandoned – whether the primary Judge erred in finding that two of the publications conveyed one of the pleaded imputations – whether the Judge erred in rejecting the appellants’ defence of justification, on the basis of credibility findings – whether the primary Judge had disavowed reliance on witness demeanour in making the credibility findings – whether the Judge erred in finding that the evidence of the appellants’ primary witness was unreliable –whether the Judge erred in finding that the evidence of the primary witness concerning the incidents alleged by the appellants was uncorroborated – whether the Judge erred in finding that a text sent by the respondent to the appellants’ primary witness was not inappropriate – whether the Judge erred in refusing leave to the appellants late in the trial to amend their filed defence so as to raise new particulars of justification. ; DAMAGES – assessment of damages for non-economic loss – aggravation of damage – Triggell v Pheeney – whether the pleading of a defence of truth was unjustified – whether publication of contents of defence in newspaper unjustified – matters published recklessly and in a sensationalised and extravagant manner where the appellants had not made adequate inquiries before publication of the matters and had not spoken to the complainant – defence alleging truth filed when the appellants had not still not spoken to the complainant – defence not capable of supporting imputations sought to be justified – no error by the Judge in finding that the conduct in pleading and then publishing allegations in the defence was unjustified. ; DAMAGES – assessment of damages for non-economic loss – proper construction of s 35 of the Defamation Act –whether the decision of the Victorian Court of Appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 3 VR 111 is plainly wrong – argument raised for the first time on appeal – whether expedient in the interests of justice to entertain argument – Bauer Media not shown to be plainly wrong. ; DAMAGES – assessment of damages for non-economic loss – whether the award of $850,000 for non-economic loss was manifestly excessive – imputations extremely serious – aggravation of harm by the appellants – respondent devastated and distressed – very high award of damages for non-economic loss warranted – little utility in comparing award with other cases – award of $850,000 not beyond what was appropriate. ; EVIDENCE – whether opinion evidence of witnesses who knew the respondent was admissible – whether there were undisclosed facts supporting opinions – no error in overruling objection. ; DAMAGES – assessment of damages for economic loss – whether respondent’s incapacity to earn income was pleaded – held that incapacity of the respondent to earn was pleaded and maintained at trial. ; EVIDENCE – principles in Jones v Dunkel – whether respondent gave evidence of the effect of the publications upon his capacity for work – whether any occasion to draw adverse inference – held that respondent gave evidence of the effect of the publications upon him – no occasion to draw adverse inference – reasons of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 explained. ; DAMAGES – assessment of damages for future economic loss – choice of period over which future loss of earning capacity estimated – application of Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 – no error by Judge in estimating future economic loss.
Legislation:	Evidence Act 1995 (Cth) ss 44, 66, 69, 135, 140 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 47A(1) Federal Court Rules 2011 (Cth) r 2.32 Defamation Act 2005 (NSW) ss 3(a), 6, 25, 28, 29, 34, 35, 36
Cases cited:	Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Australian Broadcasting Corporation v Wing [2019] FCAFC 125; 371 ALR 545 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 Australian Securities and Investments Commission v Rich [2005] NSWSC 149; 190 FLR 242 Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 Bauer Media Pty Ltd v Wilson [2018] VSCA 68 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 56 VR 674 Berrigan Shire Council v Ballerini [2005] VSCA 159; 13 VR 111 Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Brandi v Mingot (1976) 12 ALR 551 Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; 148 FCR 68 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Canale v GW and R Mould Pty Ltd [2018] VSCA 346 Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Cerutti v Crestside [2014] QCA 33 Cerutti v Crestside Pty Ltd [2016] QCA 33; 1 Qd R 89 Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519 Chulcough v Holley [1968] ALR 274; 41 ALJR 336 Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Costello v Random House Australia Pty Ltd [1999] ACTSC 13; 137 ACTR 1 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Coyne v Citizen Finance [1991] HCA 10; 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Cripps v Vakras [2014] VSC 279 Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; 366 ALR 727 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 David Syme v Mather [1977] VR 516 Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 Ex parte Harper; Re Rosenfield [1964-5]...