Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Besser v Kermode [2011] NSWCA 174 Hearing dates: 19 April 2011 Decision date: 30 June 2011 Before: Beazley JA at [1], Giles JA at [2], McColl JA at [3] Decision: 1 Grant leave to appeal.
2 Appellant to file the draft notice of appeal in a form which conforms to the issue raised on appeal within 7 days of these orders.
3 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 - s 8, Defamation Act 2005 (NSW) - cause of action defamatory matter - significance for defence of contextual truth
DEFAMATION - Defences - contextual truth - whether defendant raising contextual truth may "plead back" imputations pleaded by plaintiff - s 26, Defamation Act 2005 (NSW)
DEFAMATION - Defences - common law justification - extent to which defendant may plead and seek to justify imputation other than that relied on by plaintiff
DEFAMATION - Defences - nature of defence of contextual truth under s 16, Defamation Act 1974 (NSW)
STATUTORY INTERPRETATION - uniform laws of defamation in Australia - use of extrinsic material explaining adoption of uniform provisions - s 34, Interpretation Act 1987 (NSW)
STATUTORY INTERPRETATION - uniform laws of defamation in Australia - compromise between common law and statutory jurisdictions - relevance of jurisprudence developed in respect of s 16, Defamation Act 1974 (NSW)
WORDS AND PHRASES - "in addition to"Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT)
Uniform Civil Procedure Rules 1999 (Qld)
Defamation Act 2005 (NSW)
Defamation Act 1974 (NSW)
Defamation Act 2005 (Qld)
Defamation Act 1889 (Qld)
Defamation Act 2005 (SA)
Defamation Act 2005 (Tas)
Defamation Act 1957 (Tas)
Defamation Act 2005 (Vic)
Defamation Act 2005 (WA)
Defamation Act 2006 (NT)
Defamation Act 1952 (UK)
Interpretation Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Advertiser - News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206
Allen v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, unreported, 2 December 1988)
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Ametex Fabrics Inc v C & F Fabrics Pty Ltd [1992] FCA 529; (1992) 38 FCR 415
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Betfair Ltd v Nason [2006] ACTSC 111
Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Corby v Channel Seven Sydney Pty Ltd (New South…
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- Case
- [2011] NSWCA 174
- Decision Date
CaseChat Overview and Summary
The primary legal issue was the extent to which a defendant, in raising the defence of contextual truth, could plead and seek to justify imputations that were not the primary imputations relied upon by the plaintiff. Specifically, the court had to consider whether the wording of section 26 of the *Defamation Act 2005* (NSW) permitted a defendant to "plead back" imputations beyond those central to the plaintiff's claim, in order to establish that the defamatory matter, when considered as a whole, did not further harm the plaintiff's reputation.
The Court of Appeal, in dismissing the appeal, reasoned that the defence of contextual truth under section 26 of the *Defamation Act 2005* (NSW) operates by requiring the defendant to demonstrate that the defamatory matter, when taken as a whole, did not further harm the reputation of the plaintiff because of the presence of other substantially true imputations. The court interpreted the phrase "in addition to" within the context of the section to mean that the defendant could rely on other imputations that were substantially true, even if those imputations were not the ones the plaintiff primarily relied upon. This interpretation was informed by the legislative intent behind the uniform defamation laws, which sought to balance common law principles with statutory provisions, and by the jurisprudence developed under the previous *Defamation Act 1974* (NSW). The court concluded that the appellant had not established grounds for appeal.
Orders
Orders of the court
1 Grant leave to appeal.
2 Appellant to file the draft notice of appeal in a form which conforms to the issue raised on appeal within 7 days of these orders.
3 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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