David v Abdishou

Case [2012] NSWCA 109


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: David v Abdishou [2012] NSWCA 109
Hearing dates:10 September, 3 December 2010
Decision date: 27 April 2012
Before: Beazley JA (at [1]), McColl JA (at [2]), Sackville AJA (at [392])
Decision:

Appeal dismissed with costs.

[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 - appeal against jury verdict - s 7A Defamation Act 1974 - publication - whether defamatory matter published if made available for third party to read or comprehend whether or not third party does so.

DEFAMATION - publication - petition handed around at general meeting - whether jury finding petition not published by defendants one no reasonable jury could reach.

DEFAMATION - jury findings imputations not conveyed - whether jury misled on test of ordinary reasonable reader or listener - whether jury findings ones no reasonable jury could reach.

DEFAMATION - jury finding imputations not conveyed - where jury incorrectly directed to answer additional questions - effect of additional answers - whether answers influenced by publication findings - whether jury properly discharged function.

DEFAMATION - imputations - whether jury findings none of pleaded imputations conveyed ones no reasonable jury properly instructed could reach.

DEFAMATION - publication - whether publication established if defamatory matter read and comprehended by joint tortfeasor.

APPEAL AND NEW TRIAL - directed verdicts - whether court should direct verdict if jury verdict set aside - s 108(3) Supreme Court Act.
Legislation Cited:

Defamation Act 1889 (Qld)
Defamation Act 1958
Defamation Act 1974
Defamation Act 2005
Supreme Court Act 1970
Wrongs Act 1958 (Vic)

Supreme Court (General Civil Procedure) Rules 1996 (Vic)
Uniform Civil Procedure Rules 2005
Cases Cited: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Amann v Damm (1860) 8 CB (NS) 597
Anderson v Ntzounas [1988] VR 748
Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Arnold v Jeffreys [1914] 1 KB 512
Australian Broadcasting Corporation v Reading [2004] NSWCA 411
Barnes v Hill [1967] 1 QB 579
Beitzel v Crabb [1992] 2 VR 121
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Bright v Sampson (1985) 1 NSWLR 346
Bromley v Tonkin (1987) 11 NSWLR 211
Browne v Dunn (1893) 6 R 67
Byrne v Deane [1937] 1 KB 818
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Carr Shipping & Trading Co Pty Ltd v Sydney City Council (1963) 80 WN (NSW) 397
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Cinevest Ltd v Yirandi Productions Ltd…

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AGLC
David v Abdishou [2012] NSWCA 109
Case
[2012] NSWCA 109
Decision Date

CaseChat Overview and Summary

In *David v Abdishou*, the New South Wales Court of Appeal considered an appeal against a jury's verdict in a defamation proceeding. The dispute concerned allegations of defamatory publications made by the defendants.

The primary legal issues before the Court of Appeal were whether the jury's findings, particularly regarding the publication of the defamatory material and the imputation of certain meanings, were ones that no reasonable jury could have reached. This involved questions about the definition of "publication" in the context of a petition circulated at a general meeting, and whether the jury had been correctly directed on the test for the ordinary reasonable reader or listener. The court also considered the effect of additional questions answered by the jury and whether they had been properly discharged from their function.

The Court of Appeal reasoned that the jury's findings were open to them on the evidence presented. The court applied the principles of defamation law concerning publication, which requires that the defamatory matter be communicated to at least one person other than the plaintiff. The court also considered the test for imputations, focusing on whether the ordinary reasonable person would understand the words to convey the alleged defamatory meanings. The court found no error in the jury's assessment of these matters, nor in the directions given to them.

The appeal was dismissed, and the respondents were awarded their costs.

Orders

Orders of the court

Appeal dismissed with costs.

[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.]

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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