Bennette v Cohen [2005] NSWCA 341

Reported Decision : 64 NSWLR 81

New South Wales Court of Appeal

CITATION: Bennette v Cohen [2005] NSWCA 341

HEARING DATE(S): 17/08/2005 & 18/08/2005

JUDGMENT DATE: 24 October 2005

JUDGMENT OF: Beazley JA at 1; Bryson JA at 2-59; Brownie AJA at 60

DECISION: Appeal dismissed with costs.

CATCHWORDS: APPEAL AND NEW TRIAL - jury decision in s.7A trial - a determination by jury under Defamation Act 1974 s.7A(3) that an imputation relied on by the plaintiff was not defamatory, followed by entry of a verdict for the defendant on that imputation is subject to appeal under Supreme Court Act 1970 s.102 - it is not necessary to find a right of appeal, with or without leave, in s.101, as s.102 confers a right of appeal independently of rights conferred by s.101. - DEFAMATION - whether an imputation was defamatory - "mere vulgar abuse" - the defendant in a speech at a public meeting made statements which the jury found conveyed the imputation that "the plaintiff has done illegal work which severely damaged the environment" - jury found that this pmputation was not defamatory - proceedings at trial showed reliance by defendant on the proposition that the imputation was "mere vulgar abuse" (see Mundey v Askin [1982] 2 NSWLR 369 at 371-372) - consideration of concept of "vulgar abuse" - held that the jury's decision that the imputation was not defamatory was within the range of conclusions reasonably available.

Defamation Act 1958 Defamation Act 1972 Defamation Act 1974 LEGISLATION CITED: Gatley, 10th Ed (London 2004) Supreme Court Act 1970 Supreme Court Rules 1970 Ritchie's Supreme Court Procedure NSW

Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 Cairns v John Fairfax & Sons Ltd [19883] 2 NSWLR 708 Charlwood Industries Pty LTd v Brent [2002] NSWCA 201 Gorman v Barber (2004) 61 NSWLR 543 Greek Herald Pty Ltd v Nikolopoulos & Ors (2002) 54 NSWLR 165 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 77 ALJR 1657 Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 CASES CITED: Lockhart v Harrison (1928) 139 LT 521 Morosi v Mirror Newspapers LTd [1977] 2 NSWLR 749 Mundey v Askin [1982] 2 NSWLR 369 National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance (1989) 17 NSWLR 223 Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Swain v Waverley Municipal Council [2005] HCA 4, (2005) 79 ALJR 565 Waverley Municipal Council v Swain [2003] NSWCA 61