Bechara v Bonacorso

Bechara v Bonacorso - [2010] NSWDC 234 - NSWDC 2010 case summary — Zoe

[6]

Adams v Ward [1917] AC 309 Ainsworth v Burden [2006] NSWCA 199 Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bashford v Information Australia (2004) 218 CLR 366 Bechara v Bonacorso [2009] NSWDC 131 Bennette v Cohen [2009] NSWCA 60 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Cohen v Bennette [2009] HCA Trans 291 Croucher v Inglis (1889) 16 IR 774 F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159 For the Good Times Pty Ltd v Colten [2007] NSWSC 807 Fraser v Homes [2009] NSWCA 36 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Gross v Weston [2007] NSWCA 1 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 Hays Plc v Hartley [2010] EWHC 1068 Hebditch v McIlwaine [1894] 2 QB 54 Horrocks v Lowe [1975] AC 135 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; [2007] NSWSC 124 CASES CITED: Jennings v Buchanan [2005] 2 NZLR 577 Jones v Dunkel (1959) 101 CLR 298 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Lamb v West (1884) 15 LR (NSW) 120 Lewis v Daily Telegraph Ltd [1964] AC 234 Lindholt v Hyer (2008) 251 ALR 514 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Mirror Newspaper v Harrison (1982) 149 CLR 293 P & W v Manny [2010] ACTSC 50 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 Roberts v Bass (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Shelmerdine v Mewett [1993] Aust Def R 51-075 Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 Sutherland v Neill (1887) 6 NZLR 5 The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Watson v Foxman (1995) 49 NSWLR 315

[175]

[70] The correct approach to questions of variance was considered by the House of Lords in Jennings v Buchanan [2005] 2 NZLR 577 by Lord Bingham of Cornhill: "[5] Before turning to this principal issue, it is convenient to address another point briefly but effectively argued by Mr Gilkison for Mr Jennings. He contended, quite correctly, that it is the duty of a defamation plaintiff to plead the words said to be defamatory. This, he submitted, Mr Buchanan failed to do, since Mr Speden had not been able to vouch that the words used in his report ("Jennings said he did not resile . . .") were the precise words used by Mr Jennings, and in particular was unable to say whether "resile" was a word first used by him or by Mr Jennings. Having carefully considered this submission, the Board is satisfied that it cannot succeed. Where an oral statement is complained of, it is rarely possible (in the absence of a recording, a transcript or a very careful note) for a plaintiff to establish the precise words used by the defendant. But the law does not demand a level of precision which is unattainable in practice. The plaintiff must plead the words complained of, but it is enough if the tribunal of fact is satisfied that those words accurately express the substance of what was said. Mr Speden was adamant that "resile" was not a subeditorial interpolation (unlike another expression in his report, which he identified) and insisted that he had accurately conveyed the effect of a long interview. He was not seriously challenged in cross-examination, Mr Jennings did not give evidence to put forward a different account of the interview, and the Judge plainly accepted Mr Speden's evidence (see paras [15], [16] and [49] of his judgment). It cannot matter whether Mr Jennings said "I do not resile . . ." or whether, perhaps more probably, Mr Speden asked "Do you resile . . .?" and Mr Jennings answered "No". The law of defamation, which already has its critics, would incur justified criticism if the outcome of actions were to turn on differences of language giving rise to no difference of meaning."

[178]

[72] At the time of giving evidence, both Sergeant Fowler and the defendant were doing their best to recall a conversation that they had three years beforehand. The first issue to note is the fallibility of human memory, particularly in cases where there is no reliable contemporaneous record. The plaintiff draws my attention to McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319 concerning the fallibility of memory, as opposed to a reliable contemporaneous record of what was actually said, with the "relatively subtle nuances" from actual words: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

[323]

[158] However, were these publications volunteered? In my view they were not, for two reasons. First of all, in relation to both of the matters complained of, there was a police investigation already under way. In relation to the first car fire, the defendant had initiated that police investigation by telephoning police to report a criminal offence which he himself discovered (T 456) only two weeks earlier, and in relation to the second he was the spokesman for those who had an interest in the second car fire and wanted to notify police of a third such fire. Secondly, it is clear from analysis of the matter complained of that the defendant was answering police questions, and these questions included a question as to whether the plaintiff could name anyone. The plaintiff was required to give an honest answer. As to the law of qualified privilege regarded honest answers generally, Campbell JA in Bennette at [208] - [210] noted: "[208] An archetype of a statement protected by qualified privilege is when someone's former employer gives an honest answer to a prospective employer of that person who enquires about the ability and character of that prospective employee. The former employer's answer to that question is unlikely to have the slightest effect on the life of the average resident of this State. Even so, the duty of the former employer to give an honest answer when asked, and the interest of the prospective employer in finding out the truth on that topic, are of such a kind that it is nonetheless in the public interest that former employers should be free to give an honest answer to that type of question. I recognise that this archetype is one where the privilege is usually explained as arising from a duty of the former employer to give an honest answer to the question, rather than as arising from any interest of the former employer, but I doubt that that affects how the public interest operates in determining whether the statement is the subject of qualified privilege.

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Judgment (480 paragraphs)

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Legislation Cited (5)

Cases Cited (31)

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