Court of Appeal
New South Wales
Case Title: Trad v Harbour Radio Pty Ltd Medium Neutral Citation: [2011] NSWCA 61 Hearing Date(s): 11 June 2010, 18 June 2010 Decision Date: 22 March 2011 Jurisdiction: Before: Tobias JA, McColl JA, Basten JA
Decision: (1) Appeal allowed in part;
(2) Set aside the orders made by McClellan CJ at CL on 31 July 2009;
(3) Remit the proceedings to the Common Law Division for the assessment of damages in relation to imputations (c), (h) and (k);
(4) Dismiss the appeal with respect to imputations (a), (b), (d), (g) and (j);
(5) Order the respondent to pay 50% of the appellant's costs of the appeal;
(6) Costs of the first trial to be determined by the judge who assesses damages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: DEFAMATION - Defences - whether truth and comment can be pleaded in respect of the same imputations
DEFAMATION - Defences - truth - whether defendant established substantial truth of imputations - Defamation Act 1974 (NSW), s 15
DEFAMATION - Defences - comment - whether defendant proved factual basis for comment - Defamation Act 1974 (NSW), s 30
DEFAMATION - Defences - qualified privilege - common law - whether imputations reply to an attack - whether imputations relevant to occasion of qualified privilege
DEFAMATION - Malice - whether evidence of malice
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW)
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)Cases Cited: Adam v Ward [1917] AC 309
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Clarke v Norton [1919] VLR 494
Fraser v Holmes [2009] NSWCA 36
Griffiths Australian Broadcasting Commission [2010] NSWCA 257
Jones v Skelton [1963] 1 WLR 1365
Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 3 NSWLR 728
Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Sims v Wran [1984] 1 NSWLR 317
Spiller v Joseph [2010] UKSC 53; (2010) 3 WLR 1791
Sutherland v Stopes [1925] AC 47
Telnikoff v Matusevitch [1992] 2 AC 343
Toogood v Spyring [1834] 149 ER 1044Texts Cited: P Milmo and WVH Rogers, Gatley on Libel…
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- Case
- [2011] NSWCA 61
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the respondent had successfully established the defences of truth and comment under the *Defamation Act 1974* (NSW) in relation to certain imputations, and whether the defence of qualified privilege was available. The court also considered whether there was evidence of malice on the part of the respondent.
The Court of Appeal analysed the evidence presented in relation to each imputation. It found that the defence of truth was established for some imputations, meaning the respondent had proven the substantial truth of those statements. For other imputations, the court determined that the respondent had failed to establish the factual basis required for the defence of comment, or that the statements were not protected by qualified privilege. The court also considered the evidence of malice and its impact on the availability of certain defences.
The appeal was allowed in part. The orders of the Common Law Division were set aside, and the proceedings were remitted for the assessment of damages concerning specific imputations. The appeal was dismissed in relation to other imputations. The court also made orders regarding the costs of the appeal and the first trial.
Orders
Orders of the court
(1) Appeal allowed in part;
(2) Set aside the orders made by McClellan CJ at CL on 31 July 2009;
(3) Remit the proceedings to the Common Law Division for the assessment of damages in relation to imputations (c), (h) and (k);
(4) Dismiss the appeal with respect to imputations (a), (b), (d), (g) and (j);
(5) Order the respondent to pay 50% of the appellant's costs of the appeal;
(6) Costs of the first trial to be determined by the judge who assesses damages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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