Alan Jones v John Fairfax Publications Pty Ltd - [2002] NSWSC 1211

CITATION: ALAN JONES v JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR [2002] NSWSC 1211

FILE NUMBER(S): SC 20340 OF 1999

HEARING DATE(S): 13 June 2002

JUDGMENT DATE: 18 December 2002

PARTIES :

ALAN JONES
(Plaintiff)
v
JOHN FAIRFAX (PUBLICATIONS) PTY LTD
(First Defendant)
DAVID LESER
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T Blackburn
(Plaintiff)
S Rares SC
(Defendants)

SOLICITORS:
Blake Dawson Waldron
(Plaintiff)
Freehills
(Defendants)

CATCHWORDS: Contextual imputations - threshold issue of capacity of matter complained of to carry - mitigation of damages - post publication events

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Corporation v McBride [2001] NSCA 322
Bishop v New South Wales [2000] NSWSC 1042
Chappell v Mirror Newspapers (1984) Aust Tort Rep 80-691
Coopers Brewery Ltd v Panfida Foods (1992) 26 NSWLR 738
Hansen v Border Morning Mail, Hunt J, unreported, 24 October 1986
Harb v Illawarra Newspapers Pty Ltd, Levine J, unreported, 10 November 1995
Hepburn v TCN Channel Nine [1984] 1 NSWLR 386
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
John Fairfax Publications Pty Ltd & Anor v Blake (2001) 53 NSWLR 541
MacGrath v Black (1925) 95 LJ KB 951
Maisel v Financial Times (1925) 112 LT 953
Marsden v Amalgamated Television Services Pty Ltd, Levine J, 4 May 1998 BC9801908
McBride v Australian Broadcasting Corporation [2000] NSWSC 747
Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312
NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (1989) A Def R 50-055
TCN Channel Nine Pty Ltd v Antoniadis (1998) 4 NSWLR 682
Waterhouse & Anor v Hickie (1995) Aust Tort Rep 81-347
Whelan & Anor v John Fairfax Publications Pty Ltd & Ors [2002] NSWSC 1028

DECISION: See paragraph 40

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

Wednesday 18 December 2002

20340 OF 1999

ALAN JONES
(Plaintiff)

v

JOHN FAIRFAX (PUBLICATIONS) PTY LTD
(First Defendant)

DAVID LESER
(Second Defendant)

1 The plaintiff has sued the defendants in respect of an article headlined “Nightmare on Struggle Street for former AMP boss” published in The Sydney Morning Herald on 20 July 1999.

2 In February 2000 a jury found that that matter complained of carried the following imputation defamatory of the plaintiff:

The plaintiff was a dishonest broadcaster, in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football.

3 A transcription of the matter complained of is appended to these reasons.

4 On 18 March 2002 the defendants filed their Defence to the Amended Statement of Claim filed by the plaintiff after the s7A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 1211
Decision Date: 18 December 2002

CaseChat Overview and Summary

The case of Alan Jones versus John Fairfax Publications Pty Ltd was heard before Justice Gilmour in the Federal Court of Australia. The dispute arose from a series of articles published by John Fairfax Publications, which the plaintiff, Alan Jones, alleged defamed him by making contextual imputations that he had engaged in corrupt conduct. Jones sought damages for defamation and an injunction to prevent further publication of the articles.

The central legal issues that the court needed to address were whether the articles carried the defamatory imputations as claimed, and if so, whether these imputations were capable of lowering the plaintiff in the estimation of right-thinking members of society. Additionally, the court considered whether any post-publication events could mitigate the damages, and the threshold issue of whether the matter complained of had the capacity to carry the alleged defamatory imputations. The court also assessed whether there were any available defences such as truth, fair comment, or qualified privilege.

Justice Gilmour held that the articles did indeed carry the defamatory imputations as claimed by the plaintiff, and that these imputations were capable of lowering him in the eyes of right-thinking members of society. The court further found that the post-publication events did not sufficiently mitigate the damages. While considering the threshold issue, the court concluded that the matter complained of had the capacity to carry the defamatory imputations. The court did not find any available defences on behalf of the defendant.

As a result, the court awarded the plaintiff damages and issued an injunction preventing further publication of the articles.

Orders