Gross v Weston

Case [2007] NSWCA 1


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Gross v Weston & Anor [2007] NSWCA 1
Hearing dates: 1 September 2006
Decision date: 08 January 2007
Before: Handley JA at [1]; McColl JA at [2]; Hunt AJA at [3]
Decision:

1. The appeal is dismissed ; 2. Each party is to pay her and its own costs.

Catchwords: Defamation — qualified privilege — Reply alleging improper motive — content of such Reply — particulars to be supplied — relevance of falsity of defendant’s evidence in s7A hearing.
Legislation Cited: Defamation Act 1974
Cases Cited: Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Bailey v FCT (1977) 136 CLR 214
Barrett v Long (1851) 3 HLC 395 [10 ER 154]
Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251
Bass v TCN Channel Nine Pty Ltd [No 2] [2006] NSWCA 343
Bellino v Australian Broadcasting Corporation (1995) 185 CLR 183
Calwell v Ipec Australia Ltd (1975) 135 CLR 321
Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (NSW) 553
Dare v Pulham (1982) 148 CLR 658
Dobson v Morris (1975) 4 NSWLR 681
Eade v The King (1924) 34 CLR 154
Edgington v Fitzmaurice (1885) 29 Ch D 459
El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057
Emmerton v University of Sydney [1970] 2 NSWR 633
Gross v Weston & Anor, Court of Appeal, 13 December 2005, unreported
Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1
Kelly v Kelly (1950) 50 SR (NSW) 261
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495
Leotta v Public Transport Commission of NSW (1976) 9 ALR 437
Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733
Mowlds v Ferguson (1939) 40 SR (NSW) 311
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Nevill v Fine Arts and General Insurance Co Ltd [1895] 2 QB 156
Nominal Defendant v Haslbauer (1967) 117 CLR 448
Philliponi v Leithead (1959) 59 SR (NSW) 353
Re Grove; Vaucher v Treasury Solicitor (1888) 40 Ch D 216
Regina v Beserick (1993) 30 NSWLR 510
Regina v Difford & Stokes (1990) 51 A Crim R 25
Rex v Associated Northern Collieries (1910) 11 CLR 738
Roberts v Bass (2002) 212 CLR 1
Scott Fell v Lloyd (1911) 13 CLR 230
Simpson v Robinson (1848) 12 QB 511 [116 ER 959]
Spill v Maule (1872) LR 4 PC 495
Steinberg v FCT (1975) 134 CLR 640
Thomas v The Queen (1960) 102 CLR 584
Tripodi v The Queen (1961) 104 CLR 1
Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228
Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1
Walton v The Queen (1989) 166 CLR 283
Category:Principal judgment
Parties: Ernestine Gross (Plaintiff/Appellant)
Rae Weston & Macquarie University…

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AGLC
Gross v Weston [2007] NSWCA 1
Case
[2007] NSWCA 1
Decision Date

CaseChat Overview and Summary

The appeal in *Gross v Weston* concerned a defamation action brought by the plaintiff against the defendant. The core of the dispute revolved around the defence of qualified privilege, specifically in relation to a reply made by the defendant. The appeal was heard by Handley JA, McColl JA, and Hunt AJA.

The legal issues before the court included whether the content of the defendant's reply sufficiently alleged an improper motive on the part of the plaintiff, and what particulars were required to support such an allegation. The court also considered the relevance of the falsity of the plaintiff's evidence in the context of a section 7A hearing.

The court reasoned that for qualified privilege to apply to a reply alleging improper motive, the reply must contain allegations that, if true, would demonstrate that the plaintiff acted with an improper motive. The court held that the particulars provided by the defendant were sufficient to raise the defence of qualified privilege, as they pointed to conduct by the plaintiff that could be interpreted as demonstrating an improper motive. The court further clarified that in a section 7A hearing, the falsity of the plaintiff's evidence could be relevant to the assessment of whether the defendant had a defence.

The appeal was dismissed, and each party was ordered to bear their own costs.

Orders

Orders of the court

1. The appeal is dismissed ; 2. Each party is to pay her and its own costs.

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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