Bathurst CJ (at [1], McColl JA (at [8]), Gleeson JA (at [191])
Decision:
In appeal 2013/126155: Rosleigh Jill Rose v Allen & Unwin Pty Ltd
(1)Grant leave to appeal.
(2)Direct the appellant to file her notice of appeal in the form of the draft in the White Book within 7 days.
(3)Set aside order in [89(2)] of the first judgment (save as to imputation (h)) and order in [12(2)] of the costs judgment.
(4)Order the respondents to pay the appellant's costs in the court below.
(5)Order the respondents to pay the appellant's costs of this appeal including the costs of the application for leave to appeal.
In appeal 2013/126157: Michael Corby Jnr v Allen & Unwin Pty Ltd
(1)Grant leave to appeal.
(2)Direct the appellant to file his notice of appeal in the form of the draft in the White Book within 7 days.
(3)Set aside order in [89(3)] of the first judgment, order in [27(1)(b)] of the second judgment and order in [12(1)] of the costs judgment.
(4)Order the respondents to pay the appellant's costs in the court below.
(5)Order the respondents to pay the appellant's costs of this appeal including the costs of the application for leave to appeal.
In appeal 2013/140999: Mercedes Pearl Esma Corby v Allen & Unwin Pty Ltd
(1)Grant leave to appeal.
(2)Direct the appellant to file her notice of appeal in the form of the draft in the White Book within 7 days.
(3)Set aside order in [89(1)] of the first judgment, order in [27(1)(a)] of the second judgment and order in [12(3)] of the costs judgment.
(4)Order the respondents to pay the appellant's costs in the court below.
(5)Order the respondents to pay the appellant's costs of this appeal including the costs of the application for leave to appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
DEFAMATION - pleading imputations - where respondents published Book purporting to tell "Untold story behind Schapelle Corby's ill-fated drug run" - whether Book capable of conveying defamatory meaning
PROCEDURE - application to strike out defamatory imputations - approach to capacity determination
DEFAMATION - republication of defamatory hearsay - principles applicable when person publishes defamatory statement of third party - whether publisher "adopts" such statements
DEFAMATION - bane and antidote principle - where respondents contend defamatory effect of certain imputations neutralised by tenor of Book and specific sections of Book - application of bane and antidote principle at capacity stage
DEFAMATION…
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 Corby v Allen & Unwin Pty Ltd
Sign in free to access the full text
Details
AGLC
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Case
[2014] NSWCA 227
Decision Date
CaseChat Overview and Summary
In the New South Wales Court of Appeal, Bathurst CJ, McColl and Gleeson JJA considered appeals by Rosleigh Jill Rose, Michael Corby Jnr, and Mercedes Pearl Esma Corby against Allen & Unwin Pty Ltd. The dispute concerned a book published by the respondents, which purported to tell the "untold story behind Schapelle Corby's ill-fated drug run." The appellants alleged that the book conveyed defamatory imputations concerning them.
The primary legal issues before the Court were whether certain imputations pleaded by the appellants were capable of being defamatory, and whether the respondents' publication of the book constituted a republication of defamatory hearsay, thereby adopting such statements. The Court also had to consider the application of the "bane and antidote" principle at the capacity stage, where the respondents contended that the defamatory effect of certain imputations was neutralised by the overall tenor of the book and specific sections within it. The standard by which a defamatory imputation is determined, including the relevance of prevailing moral standards, was also a key consideration.
The Court applied established principles of defamation law, focusing on the capacity of the words used to convey a defamatory meaning. It considered whether the publisher had adopted the defamatory statements of third parties, and whether any potentially defamatory material was sufficiently counteracted by other parts of the publication to negate its defamatory impact. The Court's reasoning involved an analysis of the ordinary reasonable reader's understanding of the text in its entirety, assessing whether it would tend to lower the appellants in the estimation of right-thinking members of society.
The Court allowed the appeals, granting leave and setting aside certain orders of the court below. The respondents were ordered to pay the appellants' costs in both the court below and on appeal.
Orders
Orders of the court
In appeal 2013/126155: Rosleigh Jill Rose v Allen & Unwin Pty Ltd
(1)Grant leave to appeal.
(2)Direct the appellant to file her notice of appeal in the form of the draft in the White Book within 7 days.
(3)Set aside order in [89(2)] of the first judgment (save as to imputation (h)) and order in [12(2)] of the costs judgment.
(4)Order the respondents to pay the appellant's costs in the court below.
(5)Order the respondents to pay the appellant's costs of this appeal including the costs of the application for leave to appeal.
In appeal 2013/126157: Michael Corby Jnr v Allen & Unwin Pty Ltd
(1)Grant leave to appeal.
(2)Direct the appellant to file his notice of appeal in the form of the draft in the White Book within 7 days.
(3)Set aside order in [89(3)] of the first judgment, order in [27(1)(b)] of the second judgment and order in [12(1)] of the costs judgment.
(4)Order the respondents to pay the appellant's costs in the court below.
(5)Order the respondents to pay the appellant's costs of this appeal including the costs of the application for leave to appeal.
In appeal 2013/140999: Mercedes Pearl Esma Corby v Allen & Unwin Pty Ltd
(1)Grant leave to appeal.
(2)Direct the appellant to file her notice of appeal in the form of the draft in the White Book within 7 days.
(3)Set aside order in [89(1)] of the first judgment, order in [27(1)(a)] of the second judgment and order in [12(3)] of the costs judgment.
(4)Order the respondents to pay the appellant's costs in the court below.
(5)Order the respondents to pay the appellant's costs of this appeal including the costs of the application for leave to appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]