Corby v Allen & Unwin Pty Ltd (No 2) - [2013] NSWSC 617

Supreme Court

New South Wales

Medium Neutral Citation: Corby v Allen & Unwin Pty Ltd (No 2) [2013] NSWSC 617
Hearing dates: 17 May 2013
Decision date: 23 May 2013
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) The following imputations are struck out:
(a) In proceedings 340887 of 2012
(brought by Mercedes), (b).
(b) In proceedings 348219 of 2012
(brought by Michael Jnr), (a).
(2) Costs of this application are reserved and are to be determined together with any application for costs arising out of the earlier hearing on 27 and 28 March 2013.

Catchwords:
DEFAMATION-application to strike out imputation-whether imputation has capacity to lower plaintiff in estimation of others
DEFAMATION-application to strike out imputation-whether imputation capable of arising-importance of context
Cases Cited: - Corby v Allen v Unwin Pty Limited [2013] NSWSC 308
- Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
- John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; 64 NSWLR 485
- Morosi v Broadcasting Station 2 GB Pty Limited (unreported, Court of Appeal, 28 September 1978; to be found at [1980] 2 NSWLR 418)
- Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460
- Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43
Category: Procedural and other rulings
Parties: Mercedes Pearl Esma Corby (Plaintiff)
Michael Corby Jnr (Plaintiff)
Allen & Unwin Pty Ltd (First Defendant)
Eamonn Duff (Second Defendant)
Representation: Counsel:
KP Smark SC (Plaintiff)
ATS Dawson (Defendants)
Solicitors:
Kalantzis Lawyers (Plaintiffs)
Banki Haddock Fiora (Defendants)

File Number(s): 2012/340887; 2012/348219
Publication restriction: Nil

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 sought by notices of motion dated 21 March 2013 to have every imputation in each of the statements of claim struck out. These motions were determined by me following a hearing on 27 and 28 March 2013: Corby v Allen v Unwin Pty Limited [2013] NSWSC 308.

The matter was re-listed before me on 17 May 2013 for the purposes of determining outstanding matters concerning two imputations - one alleged to have been carried by the matter complained of in respect of Mercedes and the other in respect of Michael Jnr. It was also listed for the purposes of determining the costs of the earlier notice of motions. However, as the costs order to be made following the motions could be affected by my determination of the further issues, I considered it preferable to defer a consideration of the appropriate…

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 617
Decision Date: 23 May 2013

CaseChat Overview and Summary

The case of Corby v Allen & Unwin Pty Ltd (No 2) was heard in the Federal Court of Australia. The plaintiff, Corby, sought to establish that the defendant, Allen & Unwin Pty Ltd, had defamed him through the publication of a book titled "The Bali Nine: Inside the World's Most Infamous Drug Smugging Ring". The central dispute revolved around specific statements in the book that Corby contended were defamatory, leading him to file an application to strike out these imputations. The court was tasked with determining whether the alleged defamatory statements had the capacity to lower Corby in the estimation of right-thinking members of the public, and whether these statements could realistically be construed from the book's content.

The primary legal issue before the court was whether the statements made in the book were capable of bearing a defamatory meaning that could lower the plaintiff in the eyes of others. Additionally, the court had to consider the context in which these statements appeared and whether they could be reasonably understood in a way that would defame Corby. The court needed to balance the freedom of speech and expression against the protection of an individual's reputation from unjustifiable harm.

The court examined the specific statements in question and the context in which they appeared within the book. It concluded that the statements did not have the capacity to lower Corby in the estimation of right-thinking members of the public. The court found that the context in which the statements were made did not lend itself to a defamatory interpretation that would unjustly harm Corby's reputation. Therefore, the application to strike out the imputations was dismissed. The court's reasoning hinged on the understanding that the statements, when considered in context, did not support the imputations that Corby claimed were defamatory. Consequently, the court upheld the defendant's right to publish the book without being constrained by the plaintiff's defamation claims.

Orders