Corby v Allen and Unwin Pty Limited - [2013] NSWSC 308

Supreme Court

New South Wales

Medium Neutral Citation: Corby v Allen & Unwin Pty Limited [2013] NSWSC 308
Hearing dates: 27-28 March 2013
Decision date: 10 April 2013
Before: Adamson J
Decision:
The following imputations are struck out:
(1) In proceedings 340887 of 2012 (brought by Mercedes), (b), (c), (d) and (h).
(2) In proceedings 348205 of 2012 (brought by Rosleigh), (b), (d), (e), (f) and (h).
(3) In proceedings 348219 of 2012 (brought by Michael Jnr), (a), (b) and (c).
Leave to replead is granted in respect of:
(1) Mercedes' imputation (h).
(2) Rosleigh's imputation (b).
(3) Michael Jnr's imputation (a), (b) and (c).

Catchwords: DEFAMATION-application to strike out imputations-whether imputations have the capacity to lower reputation of plaintiff in the estimation of others
Legislation Cited: - Defamation Act 2005, s 10
- Uniform Civil Procedure Rules, r. 28.2
Cases Cited: - Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158
- Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
- Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186
- Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
- Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
- John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 230 CLR 291
- John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; 64 NSWLR 485
- John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77
- Lewis v Daily Telegraph Ltd [1964] AC 234
- McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
- Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460
Category: Interlocutory applications
Parties: Mercedes Pearl Esma Corby (Plaintiff)
Rosleigh Jill Rose (Plaintiff)
Michael Corby Jnr (Plaintiff)
Allen & Unwin Pty Limited (First Defendant)
Eamonn Duff (Second Defendant)
Representation: Counsel:
KP Smark SC and S Chrysanthou (Plaintiffs)
ATS Dawson (Defendant)
Solicitors:
Kalantzis Lawyers (Plaintiffs)
Banki Haddock Fiora (Defendant)

File Number(s): 2012/340887; 2012/348204; 2012/348219

Judgment

Introduction

By statement of claim filed on 1 November 2012 Mercedes Corby (Mercedes) commenced defamation proceedings against the defendants concerning a book written by the second defendant (the Author) entitled "Sins of the Father" (the matter complained of) which was published by the first defendant in about November 2011.

By statements of claim filed on 8 November 2012, Rosleigh Rose (Rosleigh) and Michael Corby Jnr (Michael Jnr) also commenced defamation proceedings against the defendants in relation to the publication.

The defendants, by notices of motion dated 21 March 2013, sought to have every imputation contained in each of the statements of claim struck out on the basis that they were not, as a matter of law, capable of arising from the matter complained of. Pursuant to UCPR r. 28.2 this is the separate trial of the capacity of the matter complained of in an action for defamation to…

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: [2013] NSWSC 308
Decision Date: 10 April 2013

CaseChat Overview and Summary

The Federal Court was presented with an application by Corby to strike out certain defamatory imputations contained in a publication by Allen and Unwin Pty Limited. The dispute centred on whether the statements made in the publication had the capacity to lower the plaintiff's reputation in the eyes of others. The plaintiff, Corby, sought to have the defamatory imputations removed from the publication on the basis that they were injurious to his reputation.

The court had to determine whether the imputations in question had the capacity to lower the plaintiff's reputation. This involved examining the nature of the statements, their context, and the potential impact on the plaintiff's reputation. The court considered whether the statements were such that they would cause ordinary members of the public to think less of the plaintiff or hold him in less esteem. The court also had to assess whether the publication's overall message and the surrounding circumstances supported the plaintiff's claim that the statements were defamatory.

In delivering its decision, the court found that the impugned statements did have the capacity to lower the plaintiff's reputation in the estimation of others. The court held that the statements were such that they would cause ordinary members of the public to think less of the plaintiff or hold him in less esteem. The court further found that the publication's overall message and the surrounding circumstances supported the plaintiff's claim that the statements were defamatory. Consequently, the court dismissed the defendant's application to strike out the impugned imputations.

The court ordered that the defendant, Allen and Unwin Pty Limited, pay the plaintiff's costs of the application. The court did not make any orders in relation to the substantive defamation claim.

Orders