Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 Hearing dates: 10 August 2016 Decision date: 07 September 2016 Before: McColl JA at [1]
Macfarlan JA at [2]
Gleeson JA at [3]Decision: (1) Grant leave to appeal.
(2) Direct the applicant to file a notice of appeal in the form of the draft contained in the White Book within ten (10) days.
(3) Appeal dismissed with costs.
(4) Cross-summons seeking leave to cross-appeal be dismissed with costs.Catchwords: DEFAMATION – defence – contextual truth – Defamation Act 2005 (NSW) s 26 – appeal from primary judge’s refusal to strike out contextual imputation “the plaintiff is dishonest” – news item broadcast about plaintiff’s links to illegal investment schemes – reference to plaintiff as casualty of ICAC inquiry into Liberal Party finances – whether contextual imputation unarguably bad – whether general contextual imputation carried “in addition to” other specific imputations complained of – whether primary judge misunderstood the effect of Fairfax Media Publications v Zeccola [2015] NSWCA 329 –whether general imputation of dishonesty at least arguably capable of arising
PROCEDURE – judgments and orders – interlocutory judgment – appeal against primary judge’s ruling on strike-out application relating to contextual imputation – distinction between strike-out application under UCPR 14.28(1)(a) and determination of a separate question under UCPR r 28.1 – whether correct test applied by primary judgeLegislation Cited: Defamation Act 2005 (NSW) ss 25, 26
Defamation Act 1974 (NSW) s 16
Supreme Court Act 1970 (NSW) s 101
Uniform Civil Procedure Rules 2005 (NSW) rr 14.28, 14.31, 14.33Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Bookbinder v Tebit [1989] 1 WLR 64
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Corby v Allen & Unwin Pty Ltd [2013] NSWSC 308
Cornwell v Channel Seven Sydney Pty Ltd [2015] NSWSC 1673
Dank v Rothfield [2015] NSWCA 193
Dank v Cronulla Sutherland District Rugby Football Club Ltd [2014] NSWCA 288
Fairfax Media Publications v Zeccola [2015] NSWCA 329
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Re the Will of Gilbert (1946) 46 SR (NSW) 318
John Fairfax Publications Pty Limited v Jones [2004] NSWCA 205
Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
State of New South Wales v Deren [1999] NSWCA 22
State of New South Wales v Williams [2014] NSWCA 177
Younan v Nationwide News Pty Ltd [2013] NSWCA 335Category: Principal judgment Parties: Andrew Cornwell (Applicant)
Channel Seven Sydney Pty Ltd (First Respondent)
Seven Network (Operations) Limited (Second Respondent)
Yahoo! Pty Limited (Third Respondent)
James Thomas (Fourth Respondent)Representation: Counsel:
Solicitors:
KP Smark SC/ST Chrysanthou (Applicant)
ATS Dawson/M Rabsch (Respondents)
Kalantzis Lawyers (Applicant)
Addisons Lawyers (Respondents)
File Number(s): 2015/361907 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Defamation List
- Citation:
- [2015] NSWSC 1673
- Date…
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- Case
- [2016] NSWCA 255
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the imputation of dishonesty was not unarguably bad, and whether this general imputation was carried "in addition to" other specific imputations complained of by the plaintiff. The court also considered whether the primary judge had misunderstood the effect of the decision in *Fairfax Media Publications v Zeccola* and whether the general imputation of dishonesty was at least arguably capable of arising from the broadcast. The court was also required to consider the procedural distinction between a strike-out application under UCPR 14.28(1)(a) and the determination of a separate question under UCPR r 28.1, and whether the correct test had been applied by the primary judge.
The Court of Appeal, comprising McColl, Macfarlan and Gleeson JJA, reasoned that the primary judge had correctly applied the relevant legal principles. The court found that the imputation of dishonesty was arguably capable of arising from the broadcast and was not unarguably bad in the context of the other imputations pleaded. The court distinguished the present case from *Fairfax Media Publications v Zeccola*, finding that the contextual imputation of dishonesty was not pleaded in a way that offended the principles established in that case. The court concluded that the primary judge had not erred in refusing to strike out the contextual imputation.
Consequently, the Court of Appeal granted leave to appeal, directed the applicant to file a notice of appeal within ten days, and dismissed the appeal with costs. The cross-summons seeking leave to cross-appeal was also dismissed with costs.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Direct the applicant to file a notice of appeal in the form of the draft contained in the White Book within ten (10) days.
(3) Appeal dismissed with costs.
(4) Cross-summons seeking leave to cross-appeal be dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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