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
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)
Grounds of appeal
[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.
Continue reading Murray v Raynor
Sign in free to access the full text
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.