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.
[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
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.]