Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Hutley v Cosco [2021] NSWCA 17 Hearing dates: 1, 2 February 2021 Decision date: 23 February 2021 Before: Basten JA at [1];
Macfarlan JA at [154];
White JA at [156]Decision: (1) Allow the appeal and set aside orders (1)-(5) made in the Common Law Division on 13 July 2020.
(2) In lieu thereof:
(a) order that the amended statement of claim dated 3 March 2017 be dismissed;
(b) order that the plaintiff pay the defendant’s costs of the proceedings in the Common Law Division.
(3) Order that the respondent pay the appellant’s costs in this Court.
(4) If sought, grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords: DEFAMATION – defamatory statement made in interview with reporter – defences – justification – substantial truth – conduct forming basis of imputation reactive to poor behaviour of defendant – whether defamatory statement by defendant not substantially true
DEFAMATION – defences – defence of contextual truth – further harm done by plaintiff’s imputations – whether harm done by substantially true plaintiff’s imputations to be weighed against contextual imputations – Defamation Act 2005 (NSW), s 26(b)
Legislation Cited: Crimes Act 1900 (NSW), ss 195, 196, 198
Defamation Act 2005 (NSW), ss 8, 25, 26
Environmental Planning and Assessment Act 1979 (NSW), s 96
Cases Cited: Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68
Category: Principal judgment Parties: Vanessa Hutley (Appellant)
Anthony Cosco (Respondent)Representation: Counsel:
Solicitors:
B McClintock SC / M Richardson (Appellant)
S T Chrysanthou SC / N G Olson (Respondent)
Harris & Company (Appellant)
D’Arcy Sloman Peacock (Respondent)
File Number(s): 2020/226530 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law Division
- Citation:
- Date of Decision:
- 13 July 2020
- Before:
- Rothman J
- File Number(s):
- 2016/332100
headnote
[This headnote is not to be read as part of the judgment]
The appellant (the defendant in the court below) and her family live in Balmain next door to the respondent (the plaintiff in the court below), who is a local builder. A dispute between the parties arose in relation to construction works being undertaken on the plaintiff’s property, resulting in several incidents. In July 2016, the defendant gave an interview to a reporter in which she described aspects of the respondent’s conduct. Parts of the interview critical of the defendant were broadcast as a segment of the television program, A Current Affair.
The plaintiff brought proceedings in defamation against the defendant on the basis that the interview had damaged his reputation by five imputations, including, broadly, that he had endangered her life and her family, that he had bullied, harassed and physically threatened…
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- AGLC
- Hutley v Cosco [2021] NSWCA 17
- Case
- [2021] NSWCA 17
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the statements made by the defendant were substantially true, thereby justifying the imputation, and whether the defence of contextual truth was available. Specifically, the court had to determine if the conduct forming the basis of the defamatory imputations was reactive to the plaintiff's poor behaviour, and if so, whether the harm caused by the substantially true imputations made by the plaintiff should be weighed against the harm caused by the contextual imputations made by the defendant, pursuant to section 26(b) of the *Defamation Act 2005* (NSW).
The Court of Appeal found that the defendant's statements were not substantially true, meaning the defence of justification failed. However, the court considered the defence of contextual truth. It reasoned that the plaintiff's own conduct had caused significant harm, and the imputations made by the defendant, while potentially defamatory, were not substantially true in their entirety. The court ultimately determined that the defence of contextual truth was applicable, as the harm caused by the plaintiff's own actions and the substantially true aspects of the imputations outweighed the harm caused by the remaining defamatory elements.
Consequently, the Court of Appeal allowed the appeal, setting aside the orders made by the Common Law Division. The court dismissed the plaintiff's amended statement of claim and ordered that the plaintiff pay the defendant's costs of the proceedings in the Common Law Division, as well as the appellant's costs in the Court of Appeal. The respondent was granted a certificate under the *Suitors’ Fund Act 1951* (NSW) if sought.
Orders
Orders of the court
(1) Allow the appeal and set aside orders (1)-(5) made in the Common Law Division on 13 July 2020.
(2) In lieu thereof:
(a) order that the amended statement of claim dated 3 March 2017 be dismissed;
(b) order that the plaintiff pay the defendant’s costs of the proceedings in the Common Law Division.
(3) Order that the respondent pay the appellant’s costs in this Court.
(4) If sought, grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
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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