Bennette v Cohen [2009] NSWCA 60

Bennette v Cohen [2009] NSWCA 60

The appeal was allowed because the subject matter of the meetings was raising funds for Mr Mackay's defence, not a comparison of the litigants' personal merits. On that occasion the respondent had no relevant interest in calling the appellant a thug and a bully, and the audience had no reciprocal interest in receiving those statements. Even if there were an interest in raising funds, the defamatory imputations were foreign to that interest and insufficiently connected with the occasion. The defence of comment also failed for those imputations because the ordinary reasonable listener would understand the statements that the appellant was a thug and a bully as assertions of fact, and in any...

Jurisdiction
Australia
Judgment Date
24 March 2009
Procedural Posture
Defamation Appeal / Appeal From Supreme Court of New South Wales, Common Law Division Orders of Harrison J Dated 10 July 2007 Upholding Defences of Common Law Qualified Privilege and Comment; Leave to Appeal Granted Except as to Damages
Outcome
Appeal allowed; judgment entered for the appellant against the respondent in the sum of $15,000; respondent ordered to pay costs; High Court special leave dismissed with costs on 3 November 2009.
Legal Topics
['common Law Qualified Privilege' 'reciprocity of Duty or Interest' 'privileged Occasion' 'connection Between Defamatory Imputation and Privileged Occasion' 'fair Comment' 'statements of Fact and Opinion' 'malice' 'damages' 'costs']
['defamation'] ['common Law Qualified Privilege' 'reciprocity of Duty or Interest' 'privileged Occasion' 'connection Between Defamatory Imputation and Privileged Occasion' 'fair Comment' 'statements of Fact and Opinion' 'malice' 'damages' 'costs']

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Procedural Posture

Defamation Appeal / Appeal From Supreme Court of New South Wales, Common Law Division Orders of Harrison J Dated 10 July 2007 Upholding Defences of Common Law Qualified Privilege and Comment; Leave to Appeal Granted Except as to Damages

Legal Issues

  1. 1 ['Whether each matter complained of was published on an occasion of qualified privilege at common law.' 'Whether the respondent had an interest in making the defamatory statements and the audience had a reciprocal interest in receiving them.' 'Whether the defamatory imputations that the appellant was a thug and a bully were sufficiently connected with any privileged occasion.' 'Whether the defence of comment was available for the imputations that the appellant was a thug and a bully.' 'Whether it was necessary to decide malice if qualified privilege did not attach.']

Ratio Decidendi

The appeal was allowed because the subject matter of the meetings was raising funds for Mr Mackay's defence, not a comparison of the litigants' personal merits. On that occasion the respondent had no relevant interest in calling the appellant a thug and a bully, and the audience had no reciprocal interest in receiving those statements. Even if there were an interest in raising funds, the defamatory imputations were foreign to that interest and insufficiently connected with the occasion. The defence of comment also failed for those imputations because the ordinary reasonable listener would understand the statements that the appellant was a thug and a bully as assertions of fact, and in any...

Court Disposition

Appeal allowed; judgment entered for the appellant against the respondent in the sum of $15,000; respondent ordered to pay costs; High Court special leave dismissed with costs on 3 November 2009.

Orders

  • ['Appeal allowed.' 'Set aside the orders made by Harrison J on 10 July 2007.' 'Judgment for the appellant against the respondent in the sum of $15,000.' "The respondent to pay the appellant's costs of the proceedings at first instance, of the summons for leave to appeal and of the appeal but to have with respect to...