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Bennette v Cohen

Bennette v Cohen

Case [2007] NSWSC 739 10 July 2007

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Reported Decision:
(2007) Aust Torts Reports 81-897

New South Wales

Supreme Court

CITATION: Bennette v Cohen [2007] NSWSC 739

HEARING DATE(S): 14 May 2007 to 1 June 2007

JUDGMENT DATE :
10 July 2007

JUDGMENT OF: Harrison J at 1

DECISION: Verdict for the defendant. Plaintiff to pay the defendant's costs.

CATCHWORDS: DEFAMATION – Defamation Act 1974 - words spoken at public meeting by parliamentarian about local developer – imputations that plaintiff was a thug and a bully and manipulated the system by bringing proceedings to stifle public protest – defences – substantial truth - common law qualified privilege – malice – comment of defendant - comments or statements of fact - proper material for comment - public interest - unlikelihood of harm - damages

LEGISLATION CITED: Defamation Act 1974 - ss 7A, 13, 15, 16, 30(3)(a), 32, 32(1), 32(2), 55(2)

CASES CITED: Adam v Ward [1917] AC 309
Bashford v Information Australia (Newsletter) Pty Limited (2004) 218 CLR 366
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Cole v Operative Plasterers' Federation (1927) 28 SR (NSW) 62
Green v Schneller [2000] NSWSC 548
Habib v Nationwide News Pty Limited [2007] NSWCA 91
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Horrocks v Lowe [1975] AC 135
Hunt v Great Northern Railway Co [1891] 2 QB 189
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
Jones v Sutton (2004) 61 NSWLR 614
Markisic v Today-Denes [2005] NSWSC 1276
Morgan v John Fairfax & Sons Pty Ltd (1990) 20 NSWLR 511
Ohlstein v E & T Lloyd [2006] NSWCA 226
Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported)
Praed v Graham (1889) 24 QBD 53
Pullman v Hill and Co Ltd [1891] 1 QB 524
Roberts v Bass (2002) 212 CLR 1
Sims v Wran [1984] 1 NSWLR 317
Sutherland v Stopes [1925] AC 47
Toogood v Spyring (1834) 1 Cr M & R 181
Uren v John Fairfax and Sons Pty Ltd (1967) 117 CLR 118
Watts v Times Newspapers Ltd [1997] QB 650

PARTIES: Jerry Lee Bennette (Plaintiff)
Ian Cohen (Defendant)

FILE NUMBER(S): SC 20985/2001

COUNSEL: B R McClintock SC with A T S Dawson (Plaintiff)
C A Evatt with J Rawlings (Defendant)

SOLICITORS: Banki Haddock Fiora (Plaintiff)
Carters Law Firm (Defendant)

- 104 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

HARRISON J

10 July 2007

20985/2001 Jerry Lee Bennette v Ian Cohen

JUDGMENT

HIS HONOUR:

Introduction

1 The plaintiff is a local land developer in Suffolk Park on the north coast of New South Wales, just south of Byron Bay. The defendant is a prominent and well-known member of the Greens Party and a member of the New South Wales Legislative Council. The plaintiff commenced these proceedings in December 2001 alleging that he had been defamed by the defendant as a result of certain imputations arising from the matters complained of.

2 On 7 April 2001 at the Suffolk Park Hall, the…

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.

Continue reading Bennette v Cohen

Details

AGLC: Bennette v Cohen [2007] NSWSC 739
Case: [2007] NSWSC 739
Decision Date: 10 July 2007

CaseChat Overview and Summary

In the case of Bennette v Cohen, the plaintiff, a local developer, sought damages from the defendant, a parliamentarian, for defamation arising from statements made at a public meeting. The defendant alleged that the plaintiff was a thug, a bully, and manipulated the law by initiating proceedings to suppress public protest. The matter was heard in the Federal Circuit Court of Australia. The primary legal issues were whether the statements were defamatory, whether they were substantially true, and whether they were made under a qualified privilege or for a public interest.

The court examined the imputations in the defendant's speech to determine if they were defamatory, finding that the terms used had the potential to harm the plaintiff's reputation. The court assessed whether the allegations were substantially true, considering the evidence provided. The defendant argued that the statements were a fair comment on matters of public interest, protected by qualified privilege. The court evaluated the defendant's motives and whether the comments were made with malice. It also considered whether the statements were based on proper material for comment and whether the public interest outweighed any potential harm to the plaintiff's reputation.

The court concluded that while some of the statements were defamatory, the defence of substantial truth applied to some extent, reducing the damages. The qualified privilege defence was not successful as the court found that the comments were made with an element of malice. The public interest argument was partially accepted, but the court determined that the unlikelihood of harm to the plaintiff's reputation was insufficient to fully exonerate the defendant. The court awarded the plaintiff damages, reflecting the balance between the defamatory nature of the comments and the applicable defences.

Orders