Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227

The Court of Appeal held that great caution is required in striking out pleaded imputations in defamation on incapacity grounds, as this deprives a plaintiff of the right to have a jury determine meaning. The book's loose and conspiratorial language, its consistent theme of family involvement and concealment, and references to plausible criminality render it reasonably arguable that the ordinary reader could attribute the pleaded imputations to the appellants. The trial judge erred in applying the bane and antidote doctrine at the interlocutory stage—save in rare cases, these are jury issues. Similarly, the standard for determining defamatory meaning permits moral standards to be...

Parties
Appellant: Rosleigh Jill Rose; Appellant: Michael Corby Junior; Appellant: Mercedes Pearl Esma Corby; First Respondent: Allen & Unwin Pty Ltd; Second Respondent: Eamonn Duff
Jurisdiction
Australia
Judgment Date
18 July 2014
Procedural Posture
Defamation Appeal / Court of Appeal Judgment on Interlocutory Appeal (leave and Substantive); Orders Following Interlocutory Strike Out Applications
Outcome
Appeals allowed; primary judge's orders set aside; matters to proceed to trial with imputations reinstated.
Legal Topics
Pleading Meaning and Capacity of Imputations, Strike Out Applications in Defamation, Bane and Antidote Principle, Publication and Republication of Defamatory Statements, Standards for Determining Whether Words Are Defamatory
Defamation Torts Civil Procedure Pleading Meaning and Capacity of Imputations Strike Out Applications in Defamation Bane and Antidote Principle Publication and Republication of Defamatory Statements Standards for Determining Whether Words Are Defamatory

Case Brief

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Parties

Rosleigh Jill Rose

Appellant

Michael Corby Junior

Appellant

Mercedes Pearl Esma Corby

Appellant

Allen & Unwin Pty Ltd

First Respondent

Eamonn Duff

Second Respondent

Procedural Posture

Defamation Appeal / Court of Appeal Judgment on Interlocutory Appeal (leave and Substantive); Orders Following Interlocutory Strike Out Applications

Legal Issues

  1. 1 Whether the publication ('Sins of the Father' book) was, as a matter of law, capable of conveying the pleaded imputations (involvement in a drug syndicate, lying, financial benefit from criminal activities, etc)
  2. 2 Whether the trial judge erred in concluding the overall tenor of the publication defeated the pleaded imputations via the 'bane and antidote' approach
  3. 3 Whether the hypothetical referee for defamation law imports moral standards in determining what is defamatory

Ratio Decidendi

The Court of Appeal held that great caution is required in striking out pleaded imputations in defamation on incapacity grounds, as this deprives a plaintiff of the right to have a jury determine meaning. The book's loose and conspiratorial language, its consistent theme of family involvement and concealment, and references to plausible criminality render it reasonably arguable that the ordinary reader could attribute the pleaded imputations to the appellants. The trial judge erred in applying the bane and antidote doctrine at the interlocutory stage—save in rare cases, these are jury issues. Similarly, the standard for determining defamatory meaning permits moral standards to be...

Court Disposition

Appeals allowed; primary judge's orders set aside; matters to proceed to trial with imputations reinstated.

Orders

  • Leave to appeal granted in all three appeals.
  • Set aside orders in first, second and costs judgments as set out in paragraphs [190].