New South Wales
Court of Appeal
CITATION: Mallik v McGeown & Anor [2008] NSWCA 230
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 1 August 2008
JUDGMENT DATE:
26 September 2008JUDGMENT OF: McColl JA at 1; Campbell JA at 128; Bell JA at 129 DECISION: Appeal dismissed with costs. CATCHWORDS: DEFAMATION – trial – whether jury determination that imputation the plaintiff was demented was not defamatory was one no reasonable jury could reach – whether jury determination that imputations not conveyed by publication was one no reasonable jury could reach – Defamation Act 1974 s 7A(3) - APPEAL AND NEW TRIAL – misdirection by trial judge – whether primary judge misdirected jury on the test for determining whether an imputation is defamatory – whether alleged misdirection led to a substantial wrong or miscarriage of justice – Uniform Civil Procedure Rules 2005 Pt 51.53 - APPEAL AND NEW TRIAL – non-direction by trial judge – whether substantial wrong or miscarriage of justice sufficient to warrant new trial order where trial judge did not direct jury on case not raised by party – Uniform Civil Procedure Rules 2005 Pt 51.53 - APPEAL AND NEW TRIAL – whether primary judge’s directions sufficient to cure submissions by respondents’ counsel – Uniform Civil Procedure Rules 2005 Pt 51.53 - LEGAL PRACTITIONERS – duty to the court – misdirection as ground of appeal – duty of counsel to specify at trial part of summing-up complained of and redirections sought. (D) LEGISLATION CITED: Defamation Act 1974
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Australian Broadcasting Corporation v Reading [2004] NSWCA 411
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346
Broome v Agar (1928) 138 LT 698
Burchett v Kane [1980] 2 NSWLR 266(n)
Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741
Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21
Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521.
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Gardener v Nationwide News Pty Limited [2007] NSWCA 10
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 4 All ER 732
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
John Fairfax Publications…
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- AGLC
- Mallik v McGeown [2008] NSWCA 230
- Case
- [2008] NSWCA 230
- Decision Date
CaseChat Overview and Summary
In *Mallik v McGeown*, the plaintiff appealed to the Court of Appeal of New South Wales against a jury's verdict in a defamation trial. The jury had found that certain imputations conveyed by the defendant's publication, specifically that the plaintiff was "demented," were not defamatory and that these imputations were not conveyed by the publication.
The central legal issues before the Court of Appeal were whether the primary judge had misdirected the jury on the test for determining whether an imputation is defamatory, and whether the jury's determinations were ones that no reasonable jury could have reached. The court also considered whether any alleged misdirection or non-direction by the trial judge led to a substantial wrong or miscarriage of justice, and whether the judge's directions were sufficient to cure submissions made by the respondents' counsel.
The Court of Appeal, comprising McColl JA, Campbell JA, and Bell JA, dismissed the appeal. The court reasoned that the primary judge's directions on the test for defamation were adequate and that the jury's findings were open to them. The court found no substantial wrong or miscarriage of justice that would warrant a new trial.
The appeal was dismissed with costs. Subsequently, a stay granted in relation to the costs of the s7A trial was lifted.
The central legal issues before the Court of Appeal were whether the primary judge had misdirected the jury on the test for determining whether an imputation is defamatory, and whether the jury's determinations were ones that no reasonable jury could have reached. The court also considered whether any alleged misdirection or non-direction by the trial judge led to a substantial wrong or miscarriage of justice, and whether the judge's directions were sufficient to cure submissions made by the respondents' counsel.
The Court of Appeal, comprising McColl JA, Campbell JA, and Bell JA, dismissed the appeal. The court reasoned that the primary judge's directions on the test for defamation were adequate and that the jury's findings were open to them. The court found no substantial wrong or miscarriage of justice that would warrant a new trial.
The appeal was dismissed with costs. Subsequently, a stay granted in relation to the costs of the s7A trial was lifted.
Orders
Orders of the court
Appeal dismissed with costs. (This decision has been amended:
02/02/2009 - Addendum: - Paragraph(s) After handing down judgment, on the respondent's application the stay granted by Hall J in relation to the costs of the s7A trial was lifted.
18/03/2009 - paragraph numbering incorrect - Paragraph(s) all paragraphs
18/03/2009 - page numbering corrected - Paragraph(s) headnote pages)
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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