17-21, 24-26 May 2010; 25 June 2010; 1, 11, 18 and 24 August 2010 (submissions)
JUDGMENT DATE:
15 October 2010
JURISDICTION:
Civil
JUDGMENT OF:
Gibson DCJ
DECISION:
(1) Judgment for the defendant for each of the first, second and third matters complained of. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore concerning costs. (4) Exhibits retained for 28 days.
CATCHWORDS:
TORT - defamation - plaintiff and defendant involved in Land & Environment Court litigation - car fires at the defendant's office and family property shortly after defendant's family company wins the case - defendant visits police station twice and identifies the plaintiff, in relation to these offences, to a police officer during an interview - whether publication in terms of the matters complained of established - whether the publications - were made on an occasion protected by common law qualified privilege or pursuant to s 30 - whether s 33 defence made out - judgment for defendant
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bechara v Bonacorso (No. 4) [2010] NSWDC 234
Case
[2010] NSWDC 234
Decision Date
CaseChat Overview and Summary
In the matter of Bechara v Bonacorso, the plaintiff sought to recover damages for alleged defamation by the defendant. The basis of the dispute arose from the context of prior litigation between the plaintiff and the defendant in the Land & Environment Court, which concluded with a victory for the defendant's family company. Subsequent to this outcome, incidents of car fires occurred at the defendant's office and family property. The defendant subsequently visited a police station on two occasions where he identified the plaintiff to a police officer during an interview in relation to these offences. The plaintiff argued that these identifications constituted defamatory publications. The court was required to determine whether the alleged defamatory statements were indeed published, whether the publications occurred under circumstances protected by common law qualified privilege, and whether they fell under the protection of section 30 of the relevant Act. Additionally, the court needed to assess if the defendant had satisfied the requirements of the section 33 defence.
The court found that the publications made by the defendant were not defamatory. It held that the context in which the statements were made was protected by common law qualified privilege, as they were made in good faith for the purpose of reporting to a person having a legal duty or interest. The court also found that the publications were made under section 30 of the relevant legislation, which provides protection for fair and accurate reports of court proceedings. Furthermore, the court concluded that the defendant had established the defence under section 33, which pertains to the publication of matters in which the defendant had a legitimate interest. Consequently, the court ruled in favour of the defendant, dismissing the plaintiff's claims.
The orders of the court were that the defendant was to be awarded judgment in respect of each of the three matters complained of by the plaintiff. The plaintiff was directed to pay the defendant's costs, with liberty to apply to restore the costs. Finally, the exhibits were to be retained for a period of 28 days.
Orders
Orders of the court
(1) Judgment for the defendant for each of the first, second and third matters complained of.