LEVER v MURRAY MURRAY v LEVER [1992] NSWCA 132

LEVER v MURRAY MURRAY v LEVER [1992] NSWCA 132

The trial judge erred in concluding that the inaccurate and inappropriate comments by plaintiff's counsel during closing address created an irremediable situation justifying the discharge of the jury; the remarks either did not warrant such serious remedy, or their effect could have been remedied by judicial direction. The costs order made after such discharge was also wrongly made. Further, on identification and capacity, there was sufficient evidence permitting the jury to consider whether the published statements were referable to the plaintiff and capable of bearing the imputations pleaded.

Parties
Plaintiff: Samuel Lever; Defendant: Wal Murray
Jurisdiction
Australia
Judgment Date
05 November 1992
Procedural Posture
Appeal and Cross Appeal / Appellate Judgment on Discharge of Jury and Costs, Plus Leave to Cross Appeal.
Outcome
Appeal allowed; cross-appeal dismissed.
Legal Topics
Discharge of Jury, Defamatory Imputation, Capacity and Identification, Innuendo, Costs Orders
Defamation Civil Procedure Discharge of Jury Defamatory Imputation Capacity and Identification Innuendo Costs Orders

Case Brief

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Parties

Samuel Lever

Plaintiff

Wal Murray

Defendant

Procedural Posture

Appeal and Cross Appeal / Appellate Judgment on Discharge of Jury and Costs, Plus Leave to Cross Appeal.

Legal Issues

  1. 1 Whether the trial judge erred in discharging the jury following comments by plaintiff's counsel in closing address.
  2. 2 Whether the plaintiff was capable of being identified in the published matter for the purposes of defamation law.
  3. 3 Whether the statements were capable of conveying the pleaded defamatory imputations by true or false innuendo.

Ratio Decidendi

The trial judge erred in concluding that the inaccurate and inappropriate comments by plaintiff's counsel during closing address created an irremediable situation justifying the discharge of the jury; the remarks either did not warrant such serious remedy, or their effect could have been remedied by judicial direction. The costs order made after such discharge was also wrongly made. Further, on identification and capacity, there was sufficient evidence permitting the jury to consider whether the published statements were referable to the plaintiff and capable of bearing the imputations pleaded.

Court Disposition

Appeal allowed; cross-appeal dismissed.

Orders

  • Order that the order for plaintiff to pay defendant's costs of trial be set aside; costs of first trial to abide result of second trial.
  • Time extended for defendant to seek leave to cross-appeal; leave granted; cross-appeal dismissed.