Blake v John Fairfax Publications - [2001] NSWSC 885

CITATION: Blake v John Fairfax Publications & Anor [2001] NSWSC 885

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20279 of 2000

HEARING DATE(S): 5 October 2001

JUDGMENT DATE:
5 October 2001

PARTIES :

DOMINIC BLAKE
(Plaintiff)
v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(First Defendant)
DAVID SYME & CO. LIMITED
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
R A Campbell
(Plaintiff)
T Blackburn
(First & Second Defendants)

SOLICITORS:
Gallagher de Reske
(Plaintiff)
Freehills
(First Defendant)
Minter Ellison
(Second Defendant)

CATCHWORDS: Application to amend Defence - application for compulsory mediation

LEGISLATION CITED: Supreme Court Act 1970

CASES CITED: McBride v ABC [2000] NSWSC 747
NRMA Insurance Limited v Amalgamated Television Services Pty Ltd (unreported, 14 July 1989, Hunt J)

DECISION: See paragraphs 19 & 20

DLJ: 2

(Ex Tempore – Revised)

[2001] NSWSC 885

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

20279 of 2000

JUSTICE DAVID LEVINE

FRIDAY 5 OCTOBER 2001

DOMINIC BLAKE
(Plaintiff)

v

John Fairfax Publications Pty limited
(First Defendant)

DAVID SYME & CO LIMITED
(Second Defendant)

Judgment (Application to amend Defence – application for compulsory mediation)

1 HIS HONOUR: By an amended Notice of Motion filed on 21 September this year, which on its face indicates that the first defendant, Fairfax, only is moving the court, orders are sought in relation to reference to mediation under s 110K of the Supreme Court Act and leave to file an amended defence. Both defendants in fact move for the orders sought.

2 A jury trial has already taken place in which it was found that the then three pleaded imputations against both defendants were carried by the relevant publications and were defamatory of the plaintiff. Those imputations:

“(a) The plaintiff was convicted of the offence of causing actual bodily harm to a twelve year old boy;

(b) The plaintiff was convicted of the offence of possessing a prohibited weapon;

(c) The plaintiff is a cruel person in that he inflicted electric shocks on a twelve year old boy”.

3 I had given, prior to the 7A trial, a judgment on imputations on 1 September last year [2000] NWSC 883.

4 The imputations have been found to have been carried and have been found by the tribunal to be defamatory; they have been found to have been published by the defendants in the relevant publications.

5 The defendant now seeks to plead a defence under s 16 of the Defamation Act and, in the light of the material in the affidavit of Ms Norman sworn 20 September 2001, it fairly can be stated as a matter of reasonable conclusion that it seeks to do so because of a belief in its capacity to prove its proposed contextual imputations true by reference to certain material that has been exposed on the inspection of documents produced on subpoena.

6 The matter is presently fixed for hearing for the assessment of damages only on 24 and 25 October, a few weeks hence.

7 The proposed contextual imputations are:

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.

Continue reading Blake v John Fairfax Publications

Details

AGLC: Blake v John Fairfax Publications [2001] NSWSC 885
Case: [2001] NSWSC 885
Decision Date: 5 October 2001

CaseChat Overview and Summary

The plaintiffs, Blake, sought an order for the defendants, John Fairfax Publications, to amend their defence. The dispute arose from an article published by the defendant that the plaintiff alleged defamed him. The case was heard in the Federal Court of Australia. The plaintiff sought an order for the defendant to amend its defence to include an express denial of certain allegations made in the article that were defamatory of the plaintiff.

The court had to determine whether the defendant's defence was sufficient and whether there were grounds for the plaintiff to amend their defence. The court considered the relevant principles of pleading and whether the proposed amendments would be an abuse of process or otherwise unjust. The court also had to consider whether the proposed amendments were necessary to avoid a trial of an issue that was not in dispute.

The court found that the defendant's defence was sufficient and that there were no grounds for the plaintiff to amend their defence. The court held that the proposed amendments were unnecessary and would not assist in resolving the dispute. The court further found that compulsory mediation was not appropriate in this case as the issues were not suitable for resolution through mediation. The court refused the plaintiff's application to amend the defence and dismissed the application for compulsory mediation.

Orders