Hutley v Cosco [2021] NSWCA 17

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hutley v Cosco [2021] NSWCA 17 Hearing dates: 1, 2 February 2021 Decision date: 23 February 2021 Before: Basten JA at [1]; Macfarlan JA at [154]; White JA at [156] Decision: (1) Allow the appeal and set aside orders (1)-(5) made in the Common Law Division on 13 July 2020. (2) In lieu thereof: (a) order that the amended statement of claim dated 3 March 2017 be dismissed; (b) order that the plaintiff pay the defendant's costs of the proceedings in the Common Law Division. (3) Order that the respondent pay the appellant's costs in this Court. (4) If sought, grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: DEFAMATION – defamatory statement made in interview with reporter – defences – justification – substantial truth – conduct forming basis of imputation reactive to poor behaviour of defendant – whether defamatory statement by defendant not substantially true DEFAMATION – defences – defence of contextual truth – further harm done by plaintiff's imputations – whether harm done by substantially true plaintiff's imputations to be weighed against contextual imputations – Defamation Act 2005 (NSW), s 26(b) Legislation Cited: Crimes Act 1900 (NSW), ss 195, 196, 198 Defamation Act 2005 (NSW), ss 8, 25, 26 Environmental Planning and Assessment Act 1979 (NSW), s 96 Cases Cited: Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 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 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68 Category: Principal judgment Parties: Vanessa Hutley (Appellant) Anthony Cosco (Respondent) Representation: Counsel: B McClintock SC / M Richardson (Appellant) S T Chrysanthou SC / N G Olson (Respondent)