Tory v Megna

Case [2007] NSWCA 13



New South Wales


Court of Appeal


CITATION: Richard Martin TORY v Michael MEGNA [2007] NSWCA 13
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 25 October 2006
 
JUDGMENT DATE: 

19 February 2007
JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 98; Bryson JA at 99
DECISION: Appeal dismissed with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – General grounds – Miscarriage of Justice – Circumstances not involving substantial wrong or miscarriage – Test of “substantial miscarriage of justice” under Supreme Court Rules Pt 51, r23 - APPEAL AND NEW TRIAL – Particular grounds – Misdirection or nondirection – Misconduct of counsel - DEFAMATION – Statements amounting to defamation – Whether self-published community circulars were of a character that encouraged a reader to take them seriously
LEGISLATION CITED: Civil Procedure Act 2005, s56
Defamation Act 1974, s7A
Supreme Court Rules, Pt51 r23
CASES CITED: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Balenzuela v DeGail (1959) 101 CLR 226
Bennette v Cohen (2005) 64 NSWLR 81
Brown v Churchill (2006) 31 WAR 246
Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297
General Motors-Holden’s Pty Ltd v Moularas (1964) 111 CLR 234
Mundey v Askin [1982] 2 NSWLR 369
Weiss v The Queen (2005) 224 CLR 300
PARTIES: Richard Martin Tory; David John Marshall (Appellant)
Michael Megna; Russell James Lloyd (Respondent)
FILE NUMBER(S): CA 40003/06
COUNSEL:

R McHugh SC; A Dawson (Appellant)
T Molomby SC; R Rasmussen (Respondent)

SOLICITORS: D Bricknell, Osborne Bricknell Howell (Appellant)
V Dominello, Etheringtons Solicitors (Respondents)
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): 10261 of 2004
LOWER COURT JUDICIAL OFFICER: Studdert J
LOWER COURT DATE OF DECISION: 9 September 2005

- 28 -


                          CA 40003/06

                          SPIGELMAN CJ
                          BEAZLEY JA
                          BRYSON JA

                          Monday 19 February 2007
Richard Martin TORY v Michael MEGNA
Judgment

1 SPIGELMAN CJ: This appeal arises from a jury trial, presided over by Studdert J, pursuant to s7A of the Defamation Act 1974 (NSW). A jury found that the Appellant was the publisher of the 17 matters complained of and that each of the 87 imputations pleaded was both conveyed and defamatory of the Respondent.

2 The First Respondent, Mr Megna, was a councillor of Drummoyne Council from 1987 to 2000, and Mayor from 1990 to 1993 and 1996 to 1999. The Appellant, Mr Tory, the second defendant at trial, was a long-time resident of the Drummoyne municipality who had been involved in various local issues and through that involvement had, from time to time, had contact with the first defendant, Mr Marshall. The Second Respondent, Mr Lloyd, was the general manager of Drummoyne Council from 1993 to 2000 and the second plaintiff at trial. The first defendant, Mr Marshall, was a councillor on Drummoyne Council contemporaneously with Mr Megna and had previously been Mayor. Mr Marshall was joined in the appeal just prior to the hearing.…

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AGLC
Tory v Megna [2007] NSWCA 13
Case
[2007] NSWCA 13
Decision Date

CaseChat Overview and Summary

The appeal concerned a defamation action brought by the plaintiff, Mr. Tory, against the defendant, Mr. Megna, in the Supreme Court of New South Wales. The dispute arose from the defendant's distribution of community circulars which the plaintiff alleged contained defamatory material. The appeal was heard by the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that the circulars were not defamatory, and whether there had been a substantial miscarriage of justice in the proceedings. Specifically, the court considered whether the self-published circulars were of a character that encouraged a reader to take them seriously, and whether any alleged misdirection or misconduct of counsel constituted a substantial wrong or miscarriage.

The Court of Appeal dismissed the appeal, finding no substantial miscarriage of justice. The court applied the test for a substantial miscarriage of justice under Supreme Court Rules Pt 51, r 23, and concluded that the trial judge's findings were not demonstrably wrong. The court determined that the circulars, in their context and manner of publication, were not of a character that would lead a reasonable reader to take them seriously, and therefore did not meet the threshold for defamation.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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