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
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 COURTJUDICIAL 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 Act1974 (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.…
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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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.