Bennette v Cohen

Case [2009] NSWCA 60
Appeal Outcome: Special leave dismissed with costs by the High Court, 3 November 2009 s85/2009

New South Wales


Court of Appeal


CITATION: Bennette v Cohen [2009] NSWCA 60
HEARING DATE(S): 18 December 2008
 
JUDGMENT DATE: 
24 March 2009
JUDGMENT OF: Ipp JA at 1; Tobias JA at 74; Campbell JA at 206
DECISION: (a) Appeal allowed.
(b) Set aside the orders made by Harrison J on 10 July 2007.
(c) Judgment for the appellant against the respondent in the sum of $15,000.
(d) The respondent to pay the appellant’s costs of the proceedings at first instance, of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.
CATCHWORDS: DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – particular statements – on matter of public interest – what constitutes privileged occasion, communication or conduct – whether respondent had an interest in making the defamatory statements and the audience had a reciprocal interest in receiving them – if so, whether the defamatory statements were connected to the occasion of qualified privilege - fair comment – in general – foundation of fact
LEGISLATION CITED: Crimes Act 1900
Defamation Act 1974
Defamation Act 2005
Suitors’ Fund Act 1951
CATEGORY: Principal judgment
CASES CITED: Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation Pty Ltd [2009] NSWCA 9
Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR (NSW) 357
Austin v Mirror Newspapers Ltd [1986] 1 AC 299
Bashford v Information Australia (Newsletter) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366;
Bashford v Information Australia (Newsletter) Pty Ltd [2001] NSWCA 470
Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183
Bennette v Cohen [2007] NSWSC 739; (2007) Aust Torts Reports 81-897
Dunnet v Nelson (1926) SC 764
Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102
Horrocks v Lowe [1975] AC 135
Howe and McColough v Lees [1910] HCA 67; (1910) 11 CLR
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
Lang v Willis [1934] HCA 51; (1934) 52 CLR 637
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Lindholdt v Hyer [2008] NSWCA 264
Moit v Bristow [2005] NSWCA 372
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
O’Sullivan v Schubert [1963] VR 143
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports 81-644
Stephens v Western Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211
Telegraph Newspaper Company Limited v Bedford (1934) 50 CLR 632
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
PARTIES: Jerry Lee Bennette
Ian Cohen
FILE NUMBER(S): CA 40508/07
COUNSEL: A: B McClintock SC / A Dawson
R: C Evatt / R Rasmussen / J Rawlings
SOLICITORS:

Continue reading Bennette v Cohen

Sign in free to access the full text

Details
AGLC
Bennette v Cohen [2009] NSWCA 60
Case
[2009] NSWCA 60
Decision Date

CaseChat Overview and Summary

In *Bennette v Cohen*, the Court of Appeal of New South Wales considered an appeal concerning defamatory statements made by the respondent, Mr Cohen, about the appellant, Mr Bennette. The primary dispute revolved around whether Mr Cohen's statements were protected by qualified privilege.

The court was required to determine whether the occasion on which Mr Cohen made the defamatory statements was one of qualified privilege. This involved assessing whether Mr Cohen had an interest or a duty in making the statements, and whether the recipients of those statements had a reciprocal interest or duty in receiving them. Furthermore, the court had to consider whether the specific defamatory statements made were sufficiently connected to the privileged occasion.

The Court of Appeal found that the occasion was indeed one of qualified privilege, as Mr Cohen had a legitimate interest in making the statements and the audience had a reciprocal interest in receiving them. However, the court concluded that the defamatory statements made by Mr Cohen went beyond the scope of that privilege. The court allowed the appeal, setting aside the previous orders and entering judgment for the appellant, Mr Bennette, in the sum of $15,000. Mr Cohen was ordered to pay Mr Bennette's costs of the proceedings.

Orders

Orders of the court

(a) Appeal allowed. (b) Set aside the orders made by Harrison J on 10 July 2007. (c) Judgment for the appellant against the respondent in the sum of $15,000. (d) The respondent to pay the appellant's costs of the proceedings at first instance, of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.