LEVER v MURRAY MURRAY v LEVER [1992] NSWCA 132

LEVER v MURRAY MURRAY v LEVER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 17 September 1992, 5 November 1992 [1992] NSWCA 132

PRACTICE — jury — discharge of — comments by counsel in closing address — lengthy defamation trial — whether discharge order wrong having regard to applicable principles — distinction between assertion of "racist remarks" and "racist attacks" and assertion that person responsible is a "racist" — relevance of "pragmatic" concessions and offers by counsel at the trial attempting to save the hearing — held: (Clarke JA; Kirby P and Priestley JA concurring): The trial judge erred in concluding that the objectionable comments had created an irremedial situation requiring discharge of the jury — costs of first trial to abide result of pending, second trial.

Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208 applied. David Syme and Co and Anor v Canavan (1918) 25 CLR 234 applied.

Kirby P In the appeal by Mr Lever against the discharge of the jury in the first trial and the cost order which followed, I agree with Clarke JA.

In the summons for leave to appeal brought by Mr Murray, I agree with Clarke JA that time should be extended; leave granted and the cross appeal dismissed. In the way in which the law has developed upon the subject matters of the cross appeal, explained by Clarke JA in his reasons, I agree in the conclusions which he has reached in respect of each of the publications sued upon concerning the issues of identification and the capacity of the matter complained of to bear the special meaning pleaded.

Talso agree with the consequential orders proposed by Clarke JA as to the costs both of the trial and of the appeal.

Priestley JA I agree with Clarke JA.

Clarke JA Mr Samuel Lever (the plaintiff) sued Mr Wal Murray (the defendant) inrespect of statements made by the defendant which he claimed were defamatory. The statements which led to the action were made on two separate occasions. The first were made shortly before 5 November 1988 to Mr Brad Forrest, a journalist employed by the Gold Coast Mail newspaper, and these statements were republished in the 5th November edition of the newspaper. The second was a statement made by the defendant when being interviewed on Channel 10 on 2 June 1989.