AUSTRALIAN CONSOLIDATED PRESS LTD v PATTON [1990] NSWCA 14

AUSTRALIAN CONSOLIDATED PRESS LTD v PATTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and PRIESTLEY JA 20 June 1990, 28 June 1990

[1990] NSWCA 14

DEFAMATION — imputations — separate trials concerning — one of two imputations pleaded by plaintiff upheld by David Hunt J — defendant pleads contextual imputations — Smart J finds that the matter complained of is not capable of conveying the contextual imputations — defendant appeals against both orders — held: (Gleeson CJ; Kirby P and Priestley JA concurring) (1) (affirming David Hunt J) The matter complained of was capable of conveying the defamatory imputation that the plaintiff had consented to a verdict for the defendant in her first action rather than face a trial where the defendant could establish that she had engaged in serious criminal activity; and (2) (reversing Smart J) The contextual imputations pleaded by the defendant to establish the truth of the original allegations made against the plaintiff were permissible under s16 Defamation Act 1974 and should go to the jury.

DEFAMATION — practice — separate trials — possible need for future consideration of raised by Kirby P John Fairfax and Sons Ltd v Foord (1988) 16 NSWLR 706 referred to.

Defamation Act 1974, s16.

Gleeson CJ These are two appeals, brought by leave, against decisions following separate trials of certain questions that aro, e in an action for damages for defamation. In each appeal the appellant is the defendant in the action and the respondent is the plaintiff. The first appeal is against a decision of Hunt J given on the issue of the capacity of the matter published by the defendant to convey two imputations pleaded by the plaintiff. His Honour held that the matter was capable of conveying the first of the two imputations pleaded and was not capable of conveying the second of the two imputations. The defendant appeals against the decision in relation to the first imputation. There is no cross-appeal concerning the decision in relation to the second imputation. Following the decision of Hunt J the defendant filed a defence which placed reliance upon certain contextual imputations pursuant to s16 of the Defamation Act 1974. The plaintiff thereupon sought and obtained a separate trial of a question concerning the capacity of the matter published to convey the contextual imputations relied upon by the defendant. That trial was held before Smart J who found in favour of the plaintiff and held that the matter was not capable of conveying any of the contextual imputations relied upon. The defendant also appeals against the decision of Smart J.