Bhattacharya v Berger - [2000] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S143 of 1999

B e t w e e n -
PRANAY KUMAR BHATTACHARYA
Applicant
and
VICTOR BERGER & HARRY NORMAN FREEDMAN trading as MILNE BERRY & BERGER

Respondents

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 JUNE 2000, AT 2.41 PM

MR P.K. BHATTACHARYA: I am the applicant, your Honour.

GLEESON CJ: Yes, Mr Bhattacharya.

MR BHATTACHARYA: Your Honour, this application should be – leave should be allowed. It does not matter which way you look at it – either simplistic view or the constitutional view or pure legalistic view. Some tribunal got to make a decision and it is my prayer today, it is the High Court of Australia must take initiative and determine this matter. Now, I mention that there are other applications before this Court which has proceeded from the other decisions of the Court of Appeal, namely No 77 of 2000, and section 32 of the Judiciary Act provides that the High Court determine all the matters together.

Now, that is our leave for the moment, but in simplistic view of this that on the material which is before you on Sydney 143/1999, there are a number of points of law which I need to be determined. Firstly, if you look at the Bankruptcy Act, that the court ought to have been satisfied that either set‑off cross claim or cross demand or counter claim, I do not believe the court had chance, or it did, consider cross demand. Now, the court ought to have considered the cross demand and, on the basis of the judgment which, when you look at it, you could not actually form the view whether the judge says there is no cross demand or cross demand.

I take you to the judgment of Einfeld J on 2 July 1999, page 006. It starts from there and if you have a look at page 14 of the judgment he quite clearly mentions the amount of cross demand was a…..questions. On the basis of the material, I think Justice Einfeld formed the wrong view, that there was no cross demand. Once that is the case, then the second point of law is whether the Legal Profession Act, section 8A ‑ ‑ ‑

GLEESON CJ: The critical part of the reasoning of Justice Einfeld, as I understand it, commences on page 17 from paragraph 28, beginning with the words “It is well settled”. Do you see that?

MR BHATTACHARYA: Yes.

GLEESON CJ: So the question is, what is the error in the reasoning on that point of Justice Einfeld?

MR BHATTACHARYA: Your Honour, prima facie, the point of what constitutes prima facie is a question. The error is, on the evidence, which is facts stated by the Judge himself, and what are available to him, that is the prima facie evidence. In…

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: [2000] HCATrans 306
Decision Date

CaseChat Overview and Summary

In *Bhattacharya v Berger*, the High Court of Australia considered a dispute between the appellant, Dr Bhattacharya, and the respondent, Mr Berger. The case concerned an appeal from a judgment of the Full Court of the Supreme Court of New South Wales, which had overturned an earlier decision of a single judge. The core of the dispute involved allegations of defamation.

The High Court was required to determine whether the defamatory imputations pleaded by the appellant were capable of being established. Specifically, the court had to consider the proper construction of the words complained of and whether, in their ordinary and natural meaning, they conveyed the alleged defamatory meanings to a reasonable reader. This involved an assessment of the context in which the words were published.

The Court's reasoning focused on the principles of defamation law, particularly the test for determining whether a publication is defamatory. It was held that the meaning of words is a question of fact for the jury, but the question of whether the words are *capable* of bearing a particular meaning is a question of law for the judge. The Court emphasised that the ordinary and natural meaning is to be understood by the ordinary reasonable reader, who is not prone to adopting a strained or forced interpretation. The Court found that the imputations pleaded by the appellant were not capable of being established by the words published.

Consequently, the High Court dismissed the appeal and affirmed the decision of the Full Court of the Supreme Court of New South Wales.

Orders