Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255

Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255

The primary judge did not err in refusing to strike out contextual imputation (iii) ('the plaintiff is dishonest') from the defence; it was at least arguable that the matter complained of was capable of conveying a general imputation of dishonesty in addition to the specific imputations, and so the strike-out jurisdiction should not have been exercised in this interlocutory context. The appellate court grants leave but dismisses the appeal, applying the established test that only 'plain and obvious' cases warrant strike out, and that the jury could reasonably find the general imputation is conveyed.

Parties
Applicant: Andrew Cornwell; First Respondent: Channel Seven Sydney Pty Ltd; Second Respondent: Seven Network (Operations) Limited; Third Respondent: Yahoo! Pty Limited; Fourth Respondent: James Thomas
Jurisdiction
Australia
Judgment Date
07 September 2016
Procedural Posture
Appeal / Leave to Appeal/interlocutory Appeal Against Refusal to Strike Out Contextual Imputation (iii) in Defamation Defence
Outcome
Leave to appeal granted; appeal dismissed with costs; cross-summons for leave to cross-appeal dismissed with costs.
Legal Topics
Contextual Truth, Strike Out Application, Capacity to Convey Imputation, Test Under S 26 Defamation Act 2005 (nsw), Distinction Between General and Specific Imputations, Pleading Requirements Under UCPR
Defamation Contextual Truth Strike Out Application Capacity to Convey Imputation Test Under S 26 Defamation Act 2005 (nsw) Distinction Between General and Specific Imputations Pleading Requirements Under UCPR

Case Brief

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Parties

Andrew Cornwell

Applicant

Channel Seven Sydney Pty Ltd

First Respondent

Seven Network (Operations) Limited

Second Respondent

Yahoo! Pty Limited

Third Respondent

James Thomas

Fourth Respondent

Procedural Posture

Appeal / Leave to Appeal/interlocutory Appeal Against Refusal to Strike Out Contextual Imputation (iii) in Defamation Defence

Legal Issues

  1. 1 Whether the primary judge erred in refusing to strike out contextual imputation (iii) ('the plaintiff is dishonest') on the basis that it could not be conveyed by the broadcast and/or was not carried 'in addition to' other pleaded imputations per s 26 Defamation Act 2005 (NSW)
  2. 2 Whether correct legal principle was applied in the interlocutory strike-out application under UCPR r 14.28(1)(a)
  3. 3 Whether the general Steel/‘unarguably bad’ test applies to strike-out of contextual imputations

Ratio Decidendi

The primary judge did not err in refusing to strike out contextual imputation (iii) ('the plaintiff is dishonest') from the defence; it was at least arguable that the matter complained of was capable of conveying a general imputation of dishonesty in addition to the specific imputations, and so the strike-out jurisdiction should not have been exercised in this interlocutory context. The appellate court grants leave but dismisses the appeal, applying the established test that only 'plain and obvious' cases warrant strike out, and that the jury could reasonably find the general imputation is conveyed.

Court Disposition

Leave to appeal granted; appeal dismissed with costs; cross-summons for leave to cross-appeal dismissed with costs.

Orders

  • Grant leave to appeal.
  • Direct the applicant to file a notice of appeal in the form of the draft contained in the White Book within ten (10) days.