TCN Channel Nine Pty Ltd v Pahuja - [2019] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166
Hearing dates: 7 March 2019
Date of orders: 05 July 2019
Decision date: 05 July 2019
Before: Basten JA at [1];
Payne JA at [82];
Simpson AJA at [91]
Decision:
(1)   Allow the appeal from the judgment of McCallum J given on 23 October 2018.

(2)   Set aside orders (1)-(4) made by McCallum J on 29 June 2018.

(3)   Order that there be a new trial of the matter.

(4)   Direct that the costs of the first trial be determined in the course of the new trial.

(5)   Order that the respondent pay the appellants’ costs in this Court.
(6) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:
DEFAMATION — defences — substantial truth —Defamation Act 2005 (NSW), s 25 — whether trial judge erred in withdrawing defence of substantial truth — whether sufficient evidence to support a finding of substantial truth — relevance of implausible denials of plaintiff
DEFAMATION — defences — substantial truth — contextual truth — justification of some imputations only — relevance of imputations found to be substantially true — discussion of Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Legislation Cited: Defamation Act 1912 (NSW), s 7
Defamation Act 2005 (NSW), ss 6, 25, 26
Interpretation Act 1987 (NSW), s 33
Cases Cited: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421; [2014] NSWCA 369
Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230
Edmunds v Edmunds & Ayscough [1935] VLR 177
Edwards v The Queen (1993) 178 CLR 139; [1993] HCA 63
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1
Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287
Howden v Truth & Sportsman Limited (1937) 58 CLR 416; [1937] HCA 74.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70
Roberts v Bass (2012) 212 CLR 1; [2002] HCA 57
Scruby v The Queen (1952) 55 WALR 1
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; [1975] HCA 63
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Texts Cited: Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell)JD Heydon, “Can Lies Corroborate?” (1973) 89 LQR 552
JD Heydon, Cross on Evidence…

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: [2019] NSWCA 166
Decision Date: 05 July 2019

CaseChat Overview and Summary

The appeal in *TCN Channel Nine Pty Ltd v Pahuja* concerned a defamation action heard in the Supreme Court of New South Wales. The appellant, TCN Channel Nine Pty Ltd, sought to appeal a judgment delivered by McCallum J. The core of the dispute revolved around the defence of substantial truth, as provided for under section 25 of the *Defamation Act 2005* (NSW).

The primary legal issue before the Court of Appeal was whether the trial judge had erred in withdrawing the defence of substantial truth from the jury. This involved determining whether there was sufficient evidence presented at trial to support a finding that the imputations conveyed by the defamatory material were substantially true. The court also considered the relevance of the plaintiff's implausible denials to the assessment of substantial truth and discussed the principles of contextual truth, referencing the decision in *Fairfax Media Publications Pty Ltd v Kermode*.

The Court of Appeal found that the trial judge had erred in withdrawing the defence of substantial truth. The court reasoned that there was evidence upon which a jury could have found that the imputations were substantially true, and that the plaintiff's denials were not so implausible as to warrant the withdrawal of the defence. The court applied the principles established in *Fairfax Media Publications Pty Ltd v Kermode* regarding the assessment of substantial truth and contextual truth.

Consequently, the Court of Appeal allowed the appeal, set aside the previous orders, and ordered a new trial of the matter. The costs of the first trial were to be determined in the course of the new trial, and the respondent was ordered to pay the appellants’ costs in the Court of Appeal, with a certificate granted under the *Suitors’ Fund Act 1951* (NSW).

Orders

Orders of the court

(1) Allow the appeal from the judgment of McCallum J given on 23 October 2018.

(2) Set aside orders (1)-(4) made by McCallum J on 29 June 2018.

(3) Order that there be a new trial of the matter.

(4) Direct that the costs of the first trial be determined in the course of the new trial.

(5) Order that the respondent pay the appellants’ costs in this Court.

(6) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166
Hearing dates:	7 March 2019
Date of orders:	05 July 2019
Decision date:	05 July 2019
Before:	Basten JA at [1]; Payne JA at [82]; Simpson AJA at [91]
Decision:	(1) Allow the appeal from the judgment of McCallum J given on 23 October 2018. (2) Set aside orders (1)-(4) made by McCallum J on 29 June 2018. (3) Order that there be a new trial of the matter. (4) Direct that the costs of the first trial be determined in the course of the new trial. (5) Order that the respondent pay the appellants’ costs in this Court. (6) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	DEFAMATION — defences — substantial truth —Defamation Act 2005 (NSW), s 25 — whether trial judge erred in withdrawing defence of substantial truth — whether sufficient evidence to support a finding of substantial truth — relevance of implausible denials of plaintiff DEFAMATION — defences — substantial truth — contextual truth — justification of some imputations only — relevance of imputations found to be substantially true — discussion of Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Legislation Cited:	Defamation Act 1912 (NSW), s 7 Defamation Act 2005 (NSW), ss 6, 25, 26 Interpretation Act 1987 (NSW), s 33
Cases Cited:	Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421; [2014] NSWCA 369 Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 Edmunds v Edmunds & Ayscough [1935] VLR 177 Edwards v The Queen (1993) 178 CLR 139; [1993] HCA 63 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1 Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287 Howden v Truth & Sportsman Limited (1937) 58 CLR 416; [1937] HCA 74. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68 Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70 Roberts v Bass (2012) 212 CLR 1; [2002] HCA 57 Scruby v The Queen (1952) 55 WALR 1 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; [1975] HCA 63 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Texts Cited:	Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell)JD Heydon, “Can Lies Corroborate?” (1973) 89 LQR 552 JD Heydon, Cross on Evidence…