Hennessy v Lynch (No. 2) - [2006] NSWDC 49

CITATION: Hennessy v Lynch (No. 2) [2006] NSWDC 49

HEARING DATE(S): 6 October 2006

JUDGMENT DATE:
13 October 2006

JUDGMENT OF: Gibson DCJ

DECISION: Imputation 9(a) struck out; all other imputations for each of the four publications are to go to the jury.

CATCHWORDS: Defamation - imputations - pleading and procedure

LEGISLATION CITED: Defamation Act 1974 (NSW)

CASES CITED: Angel v H M Bushell & Co [1968] 1 QB;
Borella v Penfolds Pty Limited (1992) 7 WAR 492
Cox & Lee (1869) LR 4;
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR ;
Farquhar v Bottom [1980] 2 NSWLR;
Hepburn v TCN Channel 9 Pty Limited (1983) 2 NSWLR;
John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657;
Kemsley v Foot [1952] AC 357;
Kriss v John Publications Pty Limited [2006] NSWSC 758;
Simosi v John Fairfax Publications Pty Limited [2004] NSWCA 176;
Whittington v Gladwin 1825 5 BNC 180.

PARTIES: Paul James Hennessy (plaintiff)
John Lynch (defendant)

FILE NUMBER(S): 2288/06

COUNSEL: J H Young (plaintiff)
R Weaver (defendant)

SOLICITORS: Shaw McDonald (plaintiff)
John Lynch (defendant)

JUDGMENT

1 The plaintiff brings proceedings for defamation arising from four publications alleged to have been made by the defendant to an employee of the plaintiff, a Mr Hasler, in the course of conversations. The first of these is dated 6 October 2000. The conversation that is alleged to have occurred took place is as follows:

“On or about 6 October 2000, the Defendant said to Hasler, “I am going to give you a hard time because you work for Hennessy.”

On the same date, the Defendant said to Hasler, “You know that Hennessy is a former bankrupt.

Hasler said to the Defendant, “I am a contractor and I work for two other companies apart from Hennessy and I am just here to do the work – his private business is none of my concern.”

2 The plaintiff pleads that this gives rise to the imputation that the plaintiff is a former bankrupt.

3 The second publication is as follows:

“On or about 14 October 2002, the Defendant telephone (sic) Hasler and said, “Syd there are more of Hennessy’s cattle in at the house and I don’t know what I will do with them – I will phone you tomorrow – I might put them back – they keep getting in through the flood gate at the creek – you know that the rail crossing is going to be closed – you will have to move your yards and that will cost Hennessy money to move them.”

Hasler replied, “As far as I know the crossing will not be closed.”

The Defendant said, “I have got it on good authority that the crossing will be closed.”

The Defendant further said, “You have no ethics working for Hennessy as you know he is a former bankrupt about ten years ago and you would work for Bin Laden.”

Hasler said, “You better watch your fucking mouth John.”

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 Hennessy v Lynch (No. 2)

Details

AGLC: Hennessy v Lynch (No. 2) [2006] NSWDC 49
Case: [2006] NSWDC 49
Decision Date: 13 October 2006

CaseChat Overview and Summary

The case of Hennessy v Lynch (No. 2) was heard in a relevant Australian court, where the plaintiff, Hennessy, sued the defendant, Lynch, for defamation. The plaintiff alleged that defamatory statements made by the defendant during a public address caused harm to Hennessy's reputation. The case involved multiple imputations that were contested and argued over the course of the proceedings. The court was tasked with determining which imputations were defamatory and could proceed to a jury, and which could be struck out as not defamatory.

The primary legal issues before the court were the identification and evaluation of the defamatory imputations made by Lynch against Hennessy. The court had to decide which of the imputations were actionable under defamation law and whether they were of a nature that could be considered defamatory. This required a careful analysis of the language used and the context in which it was said, as well as the potential impact on Hennessy's reputation. The court also needed to address procedural matters related to the pleadings and the appropriate course of action for each imputation.

In reaching its decision, the court examined each imputation individually, applying the principles of defamation law to determine their defamatory nature. The court found that some imputations were sufficiently serious to be considered defamatory and thus should be put to the jury for determination. Conversely, it was decided that certain imputations did not meet the threshold for defamation and were therefore struck out. The court's reasoning was grounded in established legal principles and the specific facts of the case, ensuring that each imputation was assessed on its own merits.

The final orders of the court included allowing certain imputations to proceed to the jury for further consideration and striking out others that were not deemed defamatory. The court also directed that the defendant would bear the costs associated with the argument held on 6 October 2006. This outcome set the stage for the next phase of the litigation, where the identified imputations would be further examined in a trial.

Orders

Orders of the court

1. Imputation 6(a) will go to the jury.

2. Imputation 9(a) is struck out.

3. Imputations 9(b) to 9(h) will go to the jury.

4. Imputation 12(a) will go to the jury.

5. Imputations 15(a) to (g) will go to the jury.

6. Defendant pay plaintiff’s costs of the argument on 6 October 2006.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hennessy v Lynch (No. 2) [2006] NSWDC 49
HEARING DATE(S):	6 October 2006
JUDGMENT DATE:	13 October 2006
JUDGMENT OF:	Gibson DCJ
DECISION:	Imputation 9(a) struck out; all other imputations for each of the four publications are to go to the jury.
CATCHWORDS:	Defamation - imputations - pleading and procedure
LEGISLATION CITED:	Defamation Act 1974 (NSW)
CASES CITED:	Angel v H M Bushell & Co [1968] 1 QB; Borella v Penfolds Pty Limited (1992) 7 WAR 492 Cox & Lee (1869) LR 4; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR ; Farquhar v Bottom [1980] 2 NSWLR; Hepburn v TCN Channel 9 Pty Limited (1983) 2 NSWLR; John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657; Kemsley v Foot [1952] AC 357; Kriss v John Publications Pty Limited [2006] NSWSC 758; Simosi v John Fairfax Publications Pty Limited [2004] NSWCA 176; Whittington v Gladwin 1825 5 BNC 180.
PARTIES:	Paul James Hennessy (plaintiff) John Lynch (defendant)
FILE NUMBER(S):	2288/06
COUNSEL:	J H Young (plaintiff) R Weaver (defendant)
SOLICITORS:	Shaw McDonald (plaintiff) John Lynch (defendant)