Habib v Nationwide News Pty Ltd [2010] NSWCA 34

Reported Decision: 76 NSWLR 299

New South Wales Court of Appeal

CITATION: Habib v Nationwide News Pty Ltd [2010] NSWCA 34

HEARING DATE(S): 22 May 2009

JUDGMENT DATE: 16 March 2010

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 1; McColl JA at 1

DECISION: 1. Appeal allowed with costs. 2. Set aside the judgment and orders of McClellan CJ at CL made on 7 March 2008. 3. In lieu thereof, judgment for the appellant. 4. Respondent to pay the appellant's costs of the trial to date. 5. Remit the matter to the Common Law Division for the assessment of damages.

CATCHWORDS: EVIDENCE – admission – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether inadmissible by virtue of s 84(1) Evidence Act 1995 (NSW) - EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether issue under s 84 raised as required under s 84(2) Evidence Act 1995 (NSW) - EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether primary judge reversed onus of proof under s 84(1) Evidence Act 1995 (NSW) - EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether respondent discharged burden of demonstrating appellant's admissions not influenced by s 84(1) conduct - DEFAMATION – whether defence of substantial truth established - DEFAMATION – characterisation of imputation - DEFAMATION – whether imputation general charge against the character of the plaintiff - DEFAMATION – whether interview given after publication of matter complained of sufficiently proximate in time to be relied upon as evidence of substantial truth of imputation - PROCEDURE – abuse of process – whether s 56 Civil Procedure Act 2005 (NSW) obliged appellant to make a strike out application in regard to aspects of the respondent's defence - WORDS AND PHRASES – "raised in the proceeding an issue about whether the admission or its making were so influenced" – s84(2) Evidence Act 1995 (NSW)