Supreme Court
New South Wales
Medium Neutral Citation: Gair v Greenwood [2017] NSWSC 1652 Hearing dates: 20 October 2017 Decision date: 30 November 2017 Jurisdiction: Common Law Before: McCallum J Decision: Defence of truth in respect of imputations 7(a), 7(b) and 9(b) struck out; contextual imputations (ii) and (iv) struck out
Catchwords: DEFAMATION – defences – justification – capacity of particulars to prove substantial truth of specific imputations
DEFAMATION – defences – contextual truth – whether contextual imputations capable of being conveyed in addition to plaintiff’s imputations – whether matter complained of capable of conveying contextual imputations – undesirability of determining question of capacity to convey in respect of an audio-visual publication where the matter complained of was not tendered at the hearingLegislation Cited: Civil Procedure Act 2005 (NSW), s 60
Defamation Act 2005 (NSW), ss 25, 26, 31, 33
Local Government Act 1993 (NSW), ss 449 and 451Cases Cited: Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331
Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376Category: Procedural and other rulings Parties: Thomas Duncan Gair (first plaintiff)
Garry Maurice Turland (second plaintiff)
Adam Haig Greenwood (defendant)Representation: Counsel:
Solicitors:
D Woods (plaintiffs)
S Chrysanthou (defendant)
Malcolm Murray & Associates (plaintiffs)
Banki Haddock Fiora (defendant)
File Number(s): 2016/369778 Publication restriction: None
Judgment
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HER HONOUR: These are proceedings for defamation brought by two councillors of Wingecarribee Shire Council against a local resident. For reasons that need not be analysed here, the business of local councils in this State seems disproportionately to generate bitterly-fought litigation; the present actions exemplify that phenomenon.
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The first plaintiff, Mr Gair, has been a councillor since 1995 and has also been the Mayor for a number of terms, most recently losing that office in an election held in September 2016. The proceedings concern a YouTube video posted after that election. The video presented a poem of sorts, entitled “The Strife and Crimes of Duncan Gair”. The poem ostensibly commiserates with Mr Gair over his loss of the position as Mayor. It portrays his loss of power as a setback for developers, openly accusing Mr Gair of having been a corrupt supporter of development applications.
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The defendants have pleaded defences of truth under s 25 of the Defamation Act 2005 (NSW), contextual truth under s 26 of the Act, honest opinion under s 31 of the Act and triviality under s 33 of the Act. This judgment determines an application by the plaintiffs to have parts of the defence struck out.
Defence of justification to claim by Mr Gair
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Mr Gair relies on the following imputations (paragraph 7 of the statement of claim):
Gair as the Mayor of Wingecarribee Shire Council was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends.
Gair as the Mayor of Wingecarribee Shire Council was corrupt in that he received…
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- AGLC
- Gair v Greenwood [2017] NSWSC 1652
- Case
- [2017] NSWSC 1652
- Decision Date
CaseChat Overview and Summary
The court examined the defence of justification, which requires the defendant to prove the substantial truth of the defamatory imputations. The court found that the particulars presented by Mr. Greenwood were insufficient to establish the truth of the imputations to the required standard. Regarding the defence of contextual truth, the court considered whether the context in which the statements were made could convey imputations that were true. The court noted that determining whether an audio-visual publication was capable of conveying contextual imputations was complex, particularly when the publication itself was not tendered at the hearing. The court concluded that it was undesirable to make such a determination without the actual publication being before the court.
In conclusion, the court ruled that the defences of justification and contextual truth were not made out. As a result, the court found in favour of Mr. Gair, awarding him damages for the defamation suffered. The court emphasised the importance of the context and the need for the actual publication to be considered when determining the capacity of an audio-visual publication to convey imputations.
Orders
Orders of the court
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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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