Hutley v Cosco

[2021] NSWCA 17

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:
B McClintock SC / M Richardson (Appellant)
S T Chrysanthou SC / N G Olson (Respondent)

Solicitors:
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:

[2020] NSWSC 893

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…