Bennette v Cohen

Case [2005] NSWCA 341


Reported Decision:

64 NSWLR 81

Court of Appeal


CITATION:

Bennette v Cohen [2005] NSWCA 341

HEARING DATE(S):

17/08/2005 & 18/08/2005

 
JUDGMENT DATE: 


24 October 2005

JUDGMENT OF:

Beazley JA at 1; Bryson JA at 2-59; Brownie AJA at 60

DECISION:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL - jury decision in s.7A trial - a determination by jury under Defamation Act 1974 s.7A(3) that an imputation relied on by the plaintiff was not defamatory, followed by entry of a verdict for the defendant on that imputation is subject to appeal under Supreme Court Act 1970 s.102 - it is not necessary to find a right of appeal, with or without leave, in s.101, as s.102 confers a right of appeal independently of rights conferred by s.101. - DEFAMATION - whether an imputation was defamatory - "mere vulgar abuse" - the defendant in a speech at a public meeting made statements which the jury found conveyed the imputation that "the plaintiff has done illegal work which severely damaged the environment" - jury found that this pmputation was not defamatory - proceedings at trial showed reliance by defendant on the proposition that the imputation was "mere vulgar abuse" (see Mundey v Askin [1982] 2 NSWLR 369 at 371-372) - consideration of concept of "vulgar abuse" - held that the jury's decision that the imputation was not defamatory was within the range of conclusions reasonably available.

LEGISLATION CITED:

Defamation Act 1958
Defamation Act 1972
Defamation Act 1974
Gatley, 10th Ed (London 2004)
Supreme Court Act 1970
Supreme Court Rules 1970
Ritchie's Supreme Court Procedure NSW

CASES CITED:

Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90
Cairns v John Fairfax & Sons Ltd [19883] 2 NSWLR 708
Charlwood Industries Pty LTd v Brent [2002] NSWCA 201
Gorman v Barber (2004) 61 NSWLR 543
Greek Herald Pty Ltd v Nikolopoulos & Ors (2002) 54 NSWLR 165
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 77 ALJR 1657
Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421
Lockhart v Harrison (1928) 139 LT 521
Morosi v Mirror Newspapers LTd [1977] 2 NSWLR 749
Mundey v Askin [1982] 2 NSWLR 369
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance (1989) 17 NSWLR 223
Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Swain v Waverley Municipal Council [2005] HCA 4, (2005) 79 ALJR 565
Waverley Municipal Council v Swain [2003] NSWCA 61

PARTIES:

Jerry Lee Bennette Appellant
Ian Cohen Respondent

FILE NUMBER(S):

CA 40956/2004

COUNSEL:

Mr G. Reynolds SC with Mr A. Dawson Appellant
Mr C. Evatt with Ms J. Rawlings Respondent

SOLICITORS:

Carters Law Firm - Respondent

LOWER COURT JURISDICTION:

Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):

SC 20985/01

LOWER COURT JUDICIAL OFFICER:

Hulme J



                          CA 40956/2004

                          BEAZLEY JA
                          BRYSON JA
                          BROWNIE…

Continue reading Bennette v Cohen

Sign in free to access the full text

Details
AGLC
Bennette v Cohen [2005] NSWCA 341
Case
[2005] NSWCA 341
Decision Date

CaseChat Overview and Summary

In *Bennette v Cohen*, the plaintiff appealed to the Court of Appeal of New South Wales against a jury's determination in a defamation trial. The jury had found that a particular imputation conveyed by the defendant's speech, namely that the plaintiff had engaged in illegal work that severely damaged the environment, was not defamatory. Consequently, a verdict was entered for the defendant in relation to that imputation.

The primary legal issues before the Court of Appeal were whether the jury's finding that the imputation was not defamatory was appealable under section 102 of the *Supreme Court Act 1970* (NSW), and whether the imputation constituted "mere vulgar abuse" as argued by the defendant. The court considered whether the right of appeal under section 102 was independent of the rights conferred by section 101 of the *Supreme Court Act 1970*.

The court reasoned that a determination by a jury under section 7A(3) of the *Defamation Act 1974* (NSW) that an imputation was not defamatory, followed by a verdict for the defendant, is subject to appeal under section 102 of the *Supreme Court Act 1970*. This right of appeal exists independently of any rights conferred by section 101. The court further considered the concept of "vulgar abuse" in the context of defamation law, acknowledging the defendant's reliance on this defence. Ultimately, the court held that the jury's conclusion that the imputation was not defamatory was within the range of reasonably available conclusions.

The appeal was dismissed, and the plaintiff was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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.