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Cornwell v Channel Seven Sydney Pty Ltd

Cornwell v Channel Seven Sydney Pty Ltd

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Case Copied 7 September 2016 34 min read

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Court of Appeal

Supreme Court

New South Wales

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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 judge
Legislation 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, 14.33
Cases 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 335
Category: 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:
KP Smark SC/ST Chrysanthou (Applicant)
ATS Dawson/M Rabsch (Respondents)
Solicitors:
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…

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: [2016] NSWCA 255
Decision Date: 07 September 2016

CaseChat Overview and Summary

Cornwell (the plaintiff) appealed to the Court of Appeal of New South Wales against a decision of a primary judge who refused to strike out a contextual imputation of dishonesty pleaded by Channel Seven Sydney Pty Ltd (the defendant) in defamation proceedings. The dispute arose from a news item broadcast by the defendant concerning the plaintiff's alleged links to illegal investment schemes and his reference as a casualty of an ICAC inquiry into Liberal Party finances.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 judge
Legislation 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, 14.33
Cases 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 335
Category:	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: KP Smark SC/ST Chrysanthou (Applicant) ATS Dawson/M Rabsch (Respondents) Solicitors: 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…