Bennison v O'Neil - [2012] NSWSC 360

Supreme Court

New South Wales

Case Title: Bennison v O'Neil

Medium Neutral Citation: [2012] NSWSC 360

Hearing Date(s): 11 April 2012

Decision Date: 13 April 2012

Jurisdiction:

Before: McCallum J

Decision: Plaintiff's imputations struck out with leave to re-plead

Catchwords: DEFAMATION - strike out application - whether matter complained of capable of conveying imputations pleaded by plaintiff - local council meeting - bane and antidote

Legislation Cited:

Cases Cited: Bik v Mirror Newspapers Limited [1979] 2 NSWLR 569
Favell v Queensland Newspapers Pty Limited [2005] HCA 52
Gordon v Amalgamated Television Services [1980] 2 NSWLR 410
Malcolm v National Wide News Pty Limited [2007] NSWCA 254
Morosi v Broadcasting Station 2GB Pty Limited [1980] 2 NSWLR 418 (reported as an editor's note to the decision of Gordon.

Texts Cited:

Category: Interlocutory applications

Parties: Scott Bennison (plaintiff)
Susan O'Neil (defendant)

Representation

- Counsel: Counsel:
L Brown (plaintiff)
R Potter (defendant)

- Solicitors: Solicitors:
Brett Saunders & Associates Pty Ltd t/as Saunders & Saunders Legal (plaintiff)
DLA Piper Australia (defendant)

File number(s): 2012/51249

Publication Restriction:

JUDGMENT

These are proceedings for defamation arising out of statements made by the defendant at a public meeting convened by the Lane Cove Council on 6 June 2011. The proceedings were commenced by statement of claim filed on 16 February 2012. The defendant has objected to the imputations relied upon by the plaintiff. After receiving notice of those objections, the plaintiff propounded a proposed amended statement of claim. On 11 April 2012, I heard argument as to the defendant's objections by reference to the proposed amended pleading. This judgment determines those objections.
The matter complained of is pleaded in schedule A to the proposed amended pleading, which is a transcript of the relevant parts of the meeting. In addition, the parties provided recordings of the meeting on CD's which, taken together, provided sound recording of all of the relevant parts.
The defendant spoke at the meeting as a resident of Lane Cove Council. The topic she addressed was an organisation called "Lane Cove Alive" which, according to her remarks, is funded by Lane Cove Council. By way of context, I was informed by Mr Potter, who appeared for the defendant, that Lane Cove Alive is an incorporated association established for the purpose of revitalising Lane Cove town centre whilst maintaining "a village feel".
The defendant stated that she supported statements made by previous speakers about "the inappropriateness of ratepayers continuing to fund this project" and "the lack of transparency" in particular programs of the organisation. Separately, she spoke about "another issue which has frequently been a cause of concern for community members and for me myself" which was the issue of alleged conflicts of interest that had arisen through the activities and structuring of the organisation.
The defendant's remarks as to the alleged conflicts of interest opened with reference to Council's general manager. She expressed the view that there was a conflict of interest in his being a member of the board of Lane Cove Alive.
At…

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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Details

Case: [2012] NSWSC 360
Decision Date: 13 April 2012

CaseChat Overview and Summary

In the case of Bennison v O'Neil, the plaintiff sought to strike out the defendant's defence on the basis that the content of the alleged defamation was not capable of conveying the imputations pleaded by the plaintiff. The dispute arose out of a series of events that transpired at a local council meeting. The plaintiff alleged that comments made by the defendant during the meeting defamed him in front of the council and the public, leading to reputational damage.

The legal issues before the court involved the interpretation of the defamatory material and whether it could reasonably be understood to convey the imputations as pleaded. Specifically, the court had to determine if the matter complained of was capable of bearing the defamatory meaning attributed to it by the plaintiff. This required a detailed analysis of the context in which the comments were made and the ordinary meaning that would be derived from them by a reasonable person.

The court found that the matter complained of was not capable of conveying the imputations as pleaded by the plaintiff. It concluded that the context of the council meeting and the use of the terms "bane" and "antidote" in the defendant's comments did not support the defamatory meanings as alleged. The court held that the defence was not liable to be struck out, as the matter complained of did not reasonably convey the defamatory imputations. As a result, the plaintiff's application to strike out the defence was dismissed.

Orders