NINE NETWORK AUSTRALIA PTY LTD v TABBAA [2018] NSWCA 243
Facts:
The respondents to the application (Mr and Mrs Tabbaa) brought defamation proceedings against the applicant (Nine Network) in Tabbaa v Nine Network Pty Ltd (No.10) [2018] NSWSC 468. The proceedings were brought as a result of a television interview, which was broadcast featuring the respondents’ daughter, Nadia Tabbaa, in which she described mistreatment by her father, Mr Tabbaa, between 2002 and 2006. The Tabbaa’s lost at first instance and appealed to the Supreme Court of Appeal.
Upon appeal, Nine Network made an application for security for costs pursuant to r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW). The orders sought that Mr and Mrs Tabbaa provide security for costs in relation to the three appeals. Nine Network contended there were special circumstances to grant security for costs. Those reasons were principally:
- that the appeals did not have any realistic prospects of success and;
- the subject matter of the appeal did not raise any matter of public interest.
- If an order for security of costs was made and failed to comply with, the appeals may have been refused by the court for that reason alone.
Held:
The NSW Supreme Court dismissed the application for securing for costs against the Nine Network. His Honour found that the appeals could not be characterised as hopeless or unarguable.
This was determined to be the case for two reasons; the primary judge had dealt with some of the evidence in a peculiar manner that may have had the effect of inadvertently contaminating the jury’s view of the evidence.
Second, it was quite possible that it was in the public interest to further explore the defence of honest opinion under s 31 of the Defamation Act 2005. It was “arguable that if the defence of honest opinion failed some damages should have been awarded in respect of that imputation”.
