Hutley v Cosco

[2021] NSWCA 17

NSW Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Defences
3. › Justification
4. › Substantial truth
5. › Whether defamatory statement substantially true where defendant's conduct reactive to poor behaviour of plaintiff
6. › Defamation Act 2005 (NSW), s 25
1. Defamation
2. › Defences
3. › Contextual truth
4. › Balancing exercise under s 26(b)
5. › Whether plaintiff's imputations found to be substantially true are to be excluded from the weighing exercise
6. › Whether harm done by substantially true plaintiff's imputations to be weighed against contextual imputations
7. › Defamation Act 2005 (NSW), s 26
1. Defamation
2. › Defences
3. › Contextual truth
4. › Whether contextual imputations conveyed and substantially true
5. › Defamation Act 2005 (NSW), s 26(a)

Quick Take

In the s 26(b) balancing exercise, the plaintiff's imputations found to be substantially true are excluded from the weighing, so that only untrue imputations are weighed against the defendant's true contextual imputations. Mizikovsky should not be followed on this point in NSW.