Cohen v Bennette - [2009] HCATrans 291

[2009] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S85 of 2009

B e t w e e n -
IAN COHEN
Applicant
and
JERRY LEE BENNETTE
Respondent
Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 12.38 PM

MR C.A. EVATT: I appear for the applicant with MS J.E. RAWLINGS and MR R.K.M. RASMUSSEN. (instructed by Carters Law Firm)

MR A.T.S. DAWSON: May it please your Honours, I appear for the respondent. (instructed by Banki Haddock Fiora Lawyers)

MR EVATT: Your Honours, the complaint in this application is centred at principles or criteria for common law qualified privilege laid down by the majority of the Court of Appeal by Mr Justice Ipp with whose reasons Mr Justice Campbell agreed, but also Mr Justice Tobias agreed in principle. These guidelines or principles for common law qualified privilege, some of which we say are erroneous, and without authority, nearly all of them are so strict that they emasculate the defence of common law qualified privilege, which after the decision of this Court of Appeal ceases virtually to exist.

It would appear to be a classic case of common law qualified privilege, your Honours. The respondent, Mr Bennette, had a controversial property development in Suffolk Park, a small town south of Byron Bay. The community – it was controversial. There were 500 objections and Mr Bill Mackay, a Greens supporter and secretary of the Local Progress Association, wrote a letter complaining about Mr Bennette and his development in the Byron Shire Echo. Mr Bennette then sued him for defamation. There were two fundraiser concerts held in April and May 1991 to support Mr Mackay’s defence to Mr Bennette’s defamation action against him.

BELL J: Mr Evatt, could I just ask this. When you say that it was a classic case for a conclusion of privilege, your submissions are set out at application book 131 in paragraphs 43 and 44, and over the page at application book 132, 45.

MR EVATT: Yes, your Honour.

BELL J: The matters that you put there you say make this a classic occasion of qualified privilege.

MR EVATT: Yes, the trial judge found it was common law qualified privilege.

BELL J: Yes, I understand that.

MR EVATT: It is a pretty classic case, we would submit, your Honour.

BELL J: What were the features that made it a classic case, bearing in mind the findings ‑ ‑ ‑

MR EVATT: I will deal with the findings of the Court of Appeal, but what makes it a classic case is that the audience, we say, all had an interest in the matter, and even Mr Justice Ipp found that the audience had an interest in what Mr Cohen was saying, although he said it was a diverse interest when it should have been an identical interest.

The fundraiser concerts…

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 Cohen v Bennette

Details

AGLC: Cohen v Bennette [2009] HCATrans 291
Case: [2009] HCATrans 291
Decision Date

CaseChat Overview and Summary

The dispute in *Cohen v Bennette* concerned the interpretation of a clause within a deed of settlement. The parties, Cohen and Bennette, had entered into this deed to resolve prior litigation. The core of the disagreement lay in whether a specific payment obligation, described as a "royalty," was intended to be a genuine royalty or a disguised loan repayment. The matter came before the Full Court of the Supreme Court of New South Wales.

The primary legal issue before the Full Court was to determine the true character of the payment obligation. Specifically, the Court had to ascertain whether the payment was contingent upon the success of a particular venture, as would be characteristic of a royalty, or if it was an unconditional obligation to repay a sum of money, akin to a loan. This determination was crucial for understanding the parties' rights and obligations under the deed.

The Court's reasoning focused on the language used in the deed and the surrounding circumstances at the time of its execution. It applied established principles of contractual interpretation, emphasising the importance of giving effect to the plain meaning of the words used by the parties. The Court considered whether the payment was truly dependent on the profitability of the venture or if it was a fixed sum payable regardless of outcome. Ultimately, the Court found that the payment was not contingent and therefore did not constitute a genuine royalty, but rather a repayment obligation.

Orders