Murray v Raynor

Case [2019] NSWCA 274


Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Murray v Raynor [2019] NSWCA 274
Hearing dates: 8 October 2019
Date of orders: 13 November 2019
Decision date: 13 November 2019
Before: Macfarlan JA at [1]; Payne JA at [2]; Emmett AJA at [99]
Decision:

(1)   Appeal allowed.
(2)   Set aside the orders of Gibson DCJ made on 17 May 2019 and in lieu thereof order:
(a)   Further amended statement of claim dismissed;
(b)   Plaintiff to pay the defendant’s costs.
(3)   Respondent to pay the appellant’s costs of the appeal.

Catchwords: DEFAMATION – defences – common law qualified privilege – where privileged occasion not identified – relevance of privileged occasion – malice not established – necessary factual findings not supported by evidence
Legislation Cited: Defamation Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Adam v Ward [1917] AC 309
Alexander v Clegg [2004] 3 NZLR 586
Assaf v Skalkos [2000] NSWSC 418
Attrill v Christie [2007] NSWSC 1386
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Bauer Media v Wilson (2018) 56 VR 674; [2018] VSCA 154
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996
Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30
Fairfax Media Publications Pty Limited v Gayle [2019] NSWCA 172
Fraser v Holmes [2009] NSWCA 36
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440; [1998] WASC 183
Kim Anne Ahmed v Harbour Radio Pty Limited [2013] NSWSC 1928
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah & Ors [2011] NSWCA 370
Marshall v Megna [2013] NSWCA 30
Megna v Marshall [2010] NSWSC 686
Penton v Calwell (1945) 70 CLR 219; [1945] HCA 51
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14
Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69
Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468
Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044
Trad v Harbour Radio Pty Ltd [2009] NSWSC 750
Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764; [2014] NSWSC 350
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Category:Principal judgment
Parties: Patricia Murray (Appellant)
Gary Raynor (Respondent)
Representation:

Counsel:
B McClintock SC, S Chrysanthou, P Hart (Appellant)
R Potter, A Munro (Respondent)

Solicitors:
Kalantzis Lawyers (Appellant)

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Details
AGLC
Murray v Raynor [2019] NSWCA 274
Case
[2019] NSWCA 274
Decision Date

CaseChat Overview and Summary

The appeal in *Murray v Raynor* concerned a defamation claim heard in the Court of Appeal of the Supreme Court of New South Wales. The appellant, Mr Raynor, sought to appeal against an earlier decision that had allowed the respondent, Ms Murray, to proceed with her defamation action. The core of the dispute revolved around whether certain statements made by Mr Raynor were defamatory and, if so, whether they were protected by common law qualified privilege.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in finding that the defence of common law qualified privilege was not available to Mr Raynor. This required the court to consider whether a privileged occasion had been established and, if so, whether the statements made by Mr Raynor were within the scope of that privilege. A further issue was whether the primary judge had made the necessary factual findings to support the availability of qualified privilege, and whether malice on the part of Mr Raynor had been established, which would defeat the privilege.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in her approach to the defence of qualified privilege. The court held that the necessary factual findings to establish a privileged occasion had not been supported by the evidence presented. Crucially, the court determined that malice had not been established by Ms Murray. Consequently, the Court of Appeal set aside the previous orders and dismissed Ms Murray's further amended statement of claim, ordering her to pay Mr Raynor's costs at both the primary and appellate levels.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the orders of Gibson DCJ made on 17 May 2019 and in lieu thereof order:

(a) Further amended statement of claim dismissed;

(b) Plaintiff to pay the defendant’s costs.

(3) Respondent to pay the appellant’s costs of the appeal.

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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