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.
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 COURTJUDICIAL OFFICER:
Hulme J
CA 40956/2004
BEAZLEY JA BRYSON JA BROWNIE…
Grounds of appeal
[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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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.