Corby v Allen & Unwin Pty Ltd

(2014) 108 NSWLR 431; [2014] NSWCA 227

NSW Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Pleading imputations
3. › Capacity of matter complained of to convey defamatory meaning
4. › Approach to capacity determination
5. › Whether determination is exercise in generosity not parsimony
6. › Whether imputation could reasonably be found by jury
1. Defamation
2. › Bane and antidote
3. › Application at capacity stage
4. › Whether antidote in matter complained of swamps bane
5. › Whether jury question
6. › Whether chapter recounting successful defamation proceedings neutralised drug syndicate imputations
1. Defamation
2. › Republication of defamatory hearsay
3. › Whether publisher adopts defamatory statements of third party
4. › Principles applicable when person publishes defamatory statement attributed to another
1. Defamation
2. › Whether imputation capable of being defamatory
3. › Standards by which defamatory character determined
4. › Whether hypothetical referee applies moral standards
5. › Relevance of moral or social standards to assessment of defamatory character

Quick Take

The bane and antidote principle should rarely be applied at the capacity stage to strike out imputations; whether an antidote in a publication swamps its bane is quintessentially a jury question. The hypothetical referee in defamation is taken to share moral or social standards common to society generally, and reference to moral standards is permissible when testing whether a publication is capable of being defamatory. Radio 2UE Sydney v Chesterton did not depart from Reader's Digest Services v Lamb on this point. Where a book-length publication republishes defamatory hearsay attributed to third parties, the question whether the publisher has adopted those statements is a matter for the jury.