Gair v Greenwood - [2017] NSWSC 1652

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 hearing
Legislation 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 451
Cases 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 376
Category: Procedural and other rulings
Parties: Thomas Duncan Gair (first plaintiff)
Garry Maurice Turland (second plaintiff)
Adam Haig Greenwood (defendant)
Representation:
Counsel:
D Woods (plaintiffs)
S Chrysanthou (defendant)
Solicitors:
Malcolm Murray & Associates (plaintiffs)
Banki Haddock Fiora (defendant)

File Number(s): 2016/369778
Publication restriction: None

Judgment

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.
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.
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

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…

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.

Continue reading Gair v Greenwood

Details

AGLC: Gair v Greenwood [2017] NSWSC 1652
Case: [2017] NSWSC 1652
Decision Date: 30 November 2017

CaseChat Overview and Summary

The case of Gair v Greenwood involved a defamation claim brought by Mr. Gair against Mr. Greenwood. Mr. Gair alleged that defamatory statements made by Mr. Greenwood had damaged his reputation. The matter was heard in the Supreme Court of New South Wales. The primary legal issues that the court needed to address were whether the defences of justification and contextual truth were applicable in this case. Specifically, the court had to determine if the particulars provided by Mr. Greenwood could prove the substantial truth of the specific imputations made against Mr. Gair and whether the context in which the statements were made could convey additional imputations that might be true.

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