LEVER v MURRAY [1993] NSWCA 160

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

HANDLEY, SHELLER and Cripps JJA 29 April 1993, 25 June 1993

[1993] NSWCA 160

The appellant claimed he suffered injury due to two publications of alleged defamatory statements. The first statement was made to a journalist and published and the second was published on a Channel 10 programme in which the plaintiff had appeared prior to the aired statement. The plaintiff claimed that, together with extrinsic facts, particulars of identification and in the words' natural and ordinary meaning that:

(a) in respect of the first publication the plaintiff was "not worth regarding as a human being";

(b) in respect of the second publication that the plaintiff falsely pretended to be an Australian Aboriginal and had knowingly claimed land rights which he knew he was not entitled to.

The trial judge entered judgment for the defendant. On appeal the appellant claims that:

(a) the trial judge erred in not letting certain issues of identification go to the jury the effect of which was claimed to decrease the likelihood of the jury concluding that the plaintiff had established that the matter complained of conveyed the "imputation" to any person who (with certain after knowledge) saw the matter complained of;

(b) the trial judge erred in withdrawing from the jury the imputation that the plaintiff was not worth regarding as a human being; and

(c) the trial judge misdirected the jury.

Held:

(a) Whether the trial judge was right or wrong to withhold that material was no basis for a new trial.

(b) The imputation claimed from the expression "Heap of imports" was strained, forced and unreasonable and could not have conveyed to the reasonable reader the imputation claimed. The trial judge was correct to withdraw it from the jury.

(c) There was no misdirection.