Hutley v Cosco

In *Hutley v Cosco*, the Court of Appeal of New South Wales considered a defamation claim brought by the plaintiff against the defendant. The dispute arose from statements made by the defendant during an interview with a reporter, which the plaintiff alleged were defamatory. The defendant sought to rely on defences including justification and contextual truth.

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.