Hennessy v Lynch

Case [2006] NSWDC 26
CITATION: Hennessy v Lynch [2006] NSWDC 26
HEARING DATE(S): 18/9/06
 
JUDGMENT DATE: 
27 September 2006
JUDGMENT OF: Gibson DCJ
DECISION: The provisions of the Defamation Act 1974 (NSW) apply to all causes of action pleaded in these proceedings.
CATCHWORDS: PRACTICE & PROCEDURE - DEFAMATION - Proceedings arising from three publications where two causes of action accrued under the Defamation Act 1974 (NSW) and one under the Defamation Act 2005 (NSW) - interpretation of Defamation Act 2005 Schedule 4 Clause 2 - whether the Defamation Act 1974 (NSW) or the Defamation Act 2005 (NSW) should apply to all actions where there was publication of substantially the same matter on separate occasions.
LEGISLATION CITED: Defamation Act 1974 (NSW): s7a, 9,
Defamation Act 2005 (NSW): s8, Sch 4 cl 2
CASES CITED: Habib v Nationwide News [2006] NSWCA 14
PARTIES: Paul James Hennessy (plaintiff),
John Lynch (defendant)
FILE NUMBER(S): 2288/06
COUNSEL: J Young (Plaintiff)
R Weaver (Defendant)
SOLICITORS: Shaw McDonald
Higgins & Higgins

JUDGMENT

1 The plaintiff by way of Ordinary Statement of Claim filed on 26 May 2006 commenced proceedings for defamation for three oral publications. The text of each of the statements made by the defendant was set out in the Statement of Claim as follows:


        (a) On or about 14 October 2002 the defendant telephoned an employee of the plaintiff, Mr Hasler, and said words to the effect “Hennessy has been made bankrupt and he has not been able to get credit at some business houses in Bathurst … you have no ethics working for Hennessy and you would work for Osama Bin Laden”.
        (b) On or about 18 December 2005 the defendant said to Mr Hasler “if you work for Hennessy you would work for Osama Bin Laden. You know that Hennessy is a former bankrupt”.
        (c) On or about 26 March 2006 the defendant said to Mr Hasler words to the effect “that fellow Hennessy you work for is a former bankrupt. You must have your head in the sand if you don’t know he was bankrupted about ten years ago … Hennessy’s credit was cut off at Sid Newham’s and Fish and Co. Where does Hennessy deal now?”

2 The plaintiff pleaded that the matters complained of conveyed the following imputations:


        (a) That the plaintiff was refused credit in the ordinary course of his business.
        (b) That the plaintiff is not credit worthy.
        (c) That the plaintiff is lacking in ethics.
        (d) That the plaintiff is or was a bankrupt.
        (e) That the plaintiff may be unable to meet his financial objection to Hasler.
        (f) That the plaintiff is a dishonourable person.
        (g) That the plaintiff is a person capable of heinous acts.

3 There are significant problems with the pleadings. Leaving aside questions of form and capacity, the plaintiff is obliged to plead separately the imputations arising from each of the publications rather than plead one group of imputations, and distinction must be made between the causes of action pleaded under the Defamation Act 1974 (NSW)…

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Hennessy v Lynch [2006] NSWDC 26
Case
[2006] NSWDC 26
Decision Date

CaseChat Overview and Summary

Hennessy v Lynch is a case that arose from three publications, where two causes of action were brought under the Defamation Act 1974 (NSW) and one under the Defamation Act 2005 (NSW). The primary dispute was whether the Defamation Act 1974 or the Defamation Act 2005 should govern all actions, particularly in cases where the same defamatory matter was published on separate occasions. The court was tasked with interpreting the relevant provisions of the Defamation Act 2005 Schedule 4 Clause 2 to determine which act should apply to all causes of action.

The legal issues before the court centred on the applicability of the Defamation Act 1974 versus the Defamation Act 2005 in scenarios where substantially the same defamatory matter was published on different dates. The court needed to examine whether the Defamation Act 2005, which included amendments designed to address certain deficiencies in the 1974 Act, should apply to all actions or if the 1974 Act should remain the governing law for certain causes of action. The interpretation of Clause 2 in Schedule 4 of the 2005 Act was crucial in resolving this question.

In delivering the judgment, the court held that the provisions of the Defamation Act 1974 (NSW) applied to all causes of action pleaded in these proceedings. The court concluded that the 1974 Act's provisions were more comprehensive and suitable for the circumstances of this case, given the nature and timing of the publications. Consequently, the court determined that the 1974 Act should govern all actions, even where the same defamatory matter was published on separate occasions. The decision underscored the importance of a careful and contextual interpretation of legislative provisions in defamation cases.

The final orders of the court were that the provisions of the Defamation Act 1974 (NSW) apply to all causes of action pleaded in these proceedings. This ruling ensures that the 1974 Act's framework and procedures are uniformly applied, providing clarity and consistency in the handling of defamation claims arising from multiple publications of substantially the same matter.

Orders

Orders of the court

1 The provisions of the Defamation Act 1974 (NSW) apply to all causes of action pleaded in these proceedings.

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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