Rose v Allen & Unwin Pty Ltd - [2015] NSWSC 991

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rose v Allen & Unwin Pty Limited [2015] NSWSC 991
Hearing dates: 6 May 2015
Date of orders: 07 May 2015
Decision date: 07 May 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Paragraph 6.2 of the defence to the amended statement of claim filed 21 November 2014 struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules.

Catchwords: DEFAMATION – pleadings – defences – contextual truth defence – whether defendant permitted to "plead back" imputations pleaded by plaintiff as contextual imputations – Defamation Act 2005 (NSW) s 26 – application of Besser v Kermode – discussion of decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd
Legislation Cited: Defamation Act 2005 (NSW), ss 8, 25, 26
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369
Besser v Kermode [2011] NSWCA 174; 81 NSWLR 157
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
Gett v Tabet [2009] NSWCA 76
McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196
McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224
Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68
Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375
Category: Procedural and other rulings
Parties: Rosleigh Jill Rose (Plaintiff)
Allen & Unwin Pty Limited (First Defendant)
Eamonn Duff (Second Defendant)
Representation:
Counsel:
K Smark SC, S Chrysanthou (Plaintiff)
ATS Dawson (Defendants)
Solicitors:
Kalantzis Lawyers (Plaintiff)
Banki Haddock Fiora (Defendants)

File Number(s): 2012/348204
Publication restriction: None

Judgment

HER HONOUR: Rosleigh Rose is the mother of Schapelle Corby, a well-known Australian woman who served a lengthy term of imprisonment in Bali for drug offences. Ms Corby has always maintained her innocence of the offences of which she was convicted. This is one of a number of defamation actions brought by members of Ms Corby's family arising from the publication of material purporting to reveal the "true" story of the events leading to her conviction.
The matter complained of in the present action is a book entitled Sins of the Father. The book claims to tell "the untold story behind Schapelle Corby's ill-fated drug run". Ms Rose's statement of claim alleges that the book was defamatory of her, imputing conduct ranging from dishonest denials and lies to the media; being part of a drug syndicate run by Schapelle's father; damaging Schapelle's chances of early release from prison and caring more about money and celebrity than comforting Schapelle in prison. To that action, the publisher has pleaded defences of truth, contextual truth and honest opinion.
Ms Rose has moved the Court for an order striking out the defence of contextual truth pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds that the matter pleaded in para 6.2 of the defence discloses no real defence. This judgment determines that application.
Paragraph…

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.

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Details

Case: [2015] NSWSC 991
Decision Date: 07 May 2015

CaseChat Overview and Summary

In the case of Rose v Allen & Unwin Pty Ltd, the plaintiff, Rose, initiated legal proceedings against Allen & Unwin, a publishing company, asserting that they had defamed her in a published book. The dispute centred on specific statements made within the book that the plaintiff claimed were defamatory. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues addressed by the court included the interpretation and application of the contextual truth defence under the Defamation Act 2005 (NSW) and whether the defendant was permitted to "plead back" imputations raised by the plaintiff as contextual imputations. This involved a detailed examination of the relevant statutory provisions and the case law, particularly the decision in Besser v Kermode and Born Brands Pty Ltd v Nine Network Australia Pty Ltd.

The court found that the contextual truth defence could be applied to the imputations in question. It ruled that the defendant could plead back the imputations raised by the plaintiff as contextual imputations, thereby allowing the defendant to present a comprehensive defence. The court's reasoning was grounded in the statutory framework and the principles established by the aforementioned case law. The outcome of the case was that the defendant's application to amend their defence to include the contextual truth defence was allowed.

The court ordered that the defendant be permitted to plead back the imputations as contextual imputations and that the matter proceed to trial with the amended defence. The plaintiff's defamation claim was thus allowed to continue, with the amended defence providing the defendant with an opportunity to fully contest the allegations.

Orders