This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Marshall v Megna; Megna v Tory; Tory v Megna
Medium Neutral Citation:
[2013] NSWCA 30
Hearing Date(s):
31 May, 1 June 2012
Decision Date:
25 February 2013
Before:
Allsop P at [1]; Beazley JA at [36]; Hoeben JA at [398]
Decision:
1. Appeal dismissed in part;
2. Cross-appeal allowed;
3. Set aside the orders of the trial judge made on 25 June 2010;
4. Set aside the orders of the trial judge made 18 February 2011;
5. Judgment for the plaintiff/cross-appellant (Mr Megna) against the defendants/cross-respondents (Mr Marshall and Mr Tory) in the sum of $300,000 together with interest to be calculated;
6. Judgment for the plaintiff/cross-appellant (Mr Lloyd) against the defendants/cross-respondents (Mr Marshall and Mr Tory) in the sum of $200,000 together with interest to be calculated;
7. Order that the appellants/cross-respondents/defendants (Mr Marshall and Mr Tory) pay the following costs of the respondents/cross-appellants/plaintiffs:
(a) Of the proceedings in the court below including the costs of the s 7A jury trial;
(b) Of the appeal and the cross-appeal;
8. The parties are to recalculate the interest payable on the judgment sums on the same basis specified in the reasons of the trial judge of 18 February 2011: Megna v Marshall (No 2) [2011] NSWSC 52, at the rate of 2 per cent from 1 January 2001 up to and including the date of her Honour's judgment of 25 June 2010.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
DEFAMATION - defence of qualified privilege - common law - occasion of qualified privilege.
DEFAMATION - defence of qualified privilege - relevance - sufficient connection to privileged occasion - effect of excessive language.
DEFAMATION - defence of qualified privilege defeated by malice - statement made for purpose foreign to the privilege - basis for inferring an improper motive.
DEFAMATION - defence of qualified privilege - response to attack.
DEFAMATION - defence of qualified privilege - comment - recognisable as comment not fact - proper material for comment.
DAMAGES - relationship between harm and quantum - nature of assessment by trial judge - basis for appellate intervention.
LIMITATION OF ACTIONS - tort - defamation - contemporaneity of distribution.
[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.
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Details
AGLC
Marshall v Megna [2013] NSWCA 30
Case
[2013] NSWCA 30
Decision Date
CaseChat Overview and Summary
This case concerned an appeal and cross-appeal arising from a defamation action brought by Mr Megna and Mr Lloyd against Mr Marshall and Mr Tory. The dispute centred on statements made by the defendants which the plaintiffs alleged were defamatory. The appeal was heard by Allsop P, Beazley and Hoeben JJA of the New South Wales Court of Appeal.
The primary legal issues before the Court of Appeal were whether the defence of qualified privilege was available to the defendants, and if so, whether that privilege had been defeated by malice. The court also considered the relevance of certain statements to the privileged occasion and the effect of excessive language. Furthermore, the assessment of damages by the trial judge and the application of limitation periods were also in contention.
The Court of Appeal analysed the common law defence of qualified privilege, considering whether the occasion on which the statements were made was one of privilege and whether the statements themselves were sufficiently connected to that occasion. The court examined the principles for inferring malice, particularly where a statement might be made for a purpose foreign to the privilege, and also considered whether the statements constituted comment on proper material or were recognisable as comment rather than fact. The court also reviewed the trial judge's assessment of damages in relation to the harm suffered and the principles governing appellate intervention in such assessments.
Ultimately, the Court of Appeal dismissed the appeal in part and allowed the cross-appeal. The orders of the trial judge were set aside, and judgment was entered for Mr Megna in the sum of $300,000 and for Mr Lloyd in the sum of $200,000, with interest to be calculated. The defendants were ordered to pay the costs of the proceedings in the court below, the appeal, and the cross-appeal.
Orders
Orders of the court
1. Appeal dismissed in part;
2. Cross-appeal allowed;
3. Set aside the orders of the trial judge made on 25 June 2010;
4. Set aside the orders of the trial judge made 18 February 2011;
5. Judgment for the plaintiff/cross-appellant (Mr Megna) against the defendants/cross-respondents (Mr Marshall and Mr Tory) in the sum of $300,000 together with interest to be calculated;
6. Judgment for the plaintiff/cross-appellant (Mr Lloyd) against the defendants/cross-respondents (Mr Marshall and Mr Tory) in the sum of $200,000 together with interest to be calculated;
7. Order that the appellants/cross-respondents/defendants (Mr Marshall and Mr Tory) pay the following costs of the respondents/cross-appellants/plaintiffs:
(a) Of the proceedings in the court below including the costs of the s 7A jury trial;
(b) Of the appeal and the cross-appeal;
8. The parties are to recalculate the interest payable on the judgment sums on the same basis specified in the reasons of the trial judge of 18 February 2011: Megna v Marshall (No 2) [2011] NSWSC 52, at the rate of 2 per cent from 1 January 2001 up to and including the date of her Honour's judgment of 25 June 2010.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]