The New South Wales Court of Appeal recently handed down judgment in the matter of Corby v Allen & Unwin Pty Ltd. In this case Rosleigh Jill Rose, Michael Corby Junior and Mercedes Pearl Esma Corby (‘the Appellants’) commenced proceedings in the Supreme Court of New South Wales against Eamon Duff, author of ‘Sins of the Father’ (‘the Book’), and Allen & Unwin Pty Ltd, the publisher of the Book (together ‘the Respondents’). The Book claimed to expose the ‘untold story behind Schapelle Corby’s ill-fated drug run.’
At first instance, the Appellants alleged that the Respondents, in writing and publishing the Book, had conveyed defamatory imputations of and concerning them which inferred, amongst other things, that they were either part of a drug syndicate run by Schapelle’s father, or dishonestly denied any knowledge of the drug syndicate. The Respondents sought to have these imputations struck out on the basis that they were not, as a matter of law, capable of arising from the book. Her Honour, Adamson J, agreeing with the Respondents, struck out the imputations as incapable of arising, and in one case, on the basis that the imputation was not capable of being defamatory. The effect of her Honour’s decision was to substantially restrict the Appellants’ cases at trial.
In granting leave to appeal and in allowing the appeal, the Court of Appeal emphasised that, quintessentially, ’the jury is the proper tribunal for determining whether the antidote has overcome the bane,’ that is, a jury, as the finder of fact, and not a judge ought to be responsible for determining whether the imputation as alleged is capable of being conveyed through the medium. In her lead judgment, McColl JA held that Adamson J erred in failing to outline the standard by which a capacity determination, that is, the determination of whether or not an imputation is capable of being conveyed, is to be made. McColl JA held that it is the function of a judge at the capacity stage to determine ’the outside boundaries of the possible range of meanings and set the ‘ground rules’ for the trial.’ It was her Honour’s view that the process of determining the capacity of an imputation was an exercise in generosity, and not one of parsimony. The Court of Appeal held that in failing to adopt this approach, and in concluding that the imputations were not, as a matter of law, capable of establishing the matter complained of, the primary judge had erred in striking out the alleged imputations. McColl JA stressed that the question to be considered is, simply, ’what a jury could sensibly think the words meant to the ordinary reasonable reader?’ Her Honour emphasised, at , that in considering whether imputations are as a matter of law capable of arising, the focus should be on the fact that a the decision to strike out imputations deprives a plaintiff of the opportunity to present his or her case to the jury as representatives of the community.
The test in Morosi v Mirror Newspapers Ltd  2 NSWLR 749 was reemphasised by the Court of Appeal when they stressed that an imputation is considered defamatory if the words tend to lower the plaintiff in the estimation of “ordinary decent persons, being reasonable people of ordinary intelligence, experience and education”. Their Honours concluded that in considering whether or not an imputation is defamatory reference may be had to the moral standards common to society.
Being of the opinion that it would be open to a jury to conclude that the ordinary reasonable reader was being invited to accept the imputations as alleged, the Court of Appeal held that Adamson J erred in striking out the imputations.