Blake v John Fairfax Publications
[2001] NSWSC 885
•5 October 2001
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 2001PARTIES :
DOMINIC BLAKE
(Plaintiff)v
JOHN FAIRFAX PUBLICATIONS PTY LTD
DAVID SYME & CO. LIMITED
(First Defendant)
(Second Defendant)JUDGMENT OF: Levine J
COUNSEL : R A Campbell
T Blackburn
(Plaintiff)
(First & Second Defendants)SOLICITORS: Gallagher de Reske
(Plaintiff)Freehills
Minter Ellison
(First Defendant)
(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
(Plaintiff)
John Fairfax Publications Pty limitedv
(First Defendant)
(Second Defendant)
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:
(a) The plaintiff assaulted a 12 year old boy by the use of an electrical device;
(c) The plaintiff was in possession of a dangerous weapon.(b) The plaintiff was in possession of a prohibited weapon;
8 I do not propose to review at length all the corpus of decisions on what still remains, perhaps, the most elusive of components of the Defamation Act 1974, that dealing with the defence enacted in s 16 (contextual truth) in the light of the recommendations of the Law Reform Commission.
9 What is argued for the plaintiff is that the proposed contextual imputation (a), that the plaintiff assaulted a 12 year old boy by the use of an electrical device, does not arise and cannot arise in addition to or in a substantially different way from those found by the jury to defame the plaintiff.
10 In relation to proposed contextual imputation (c), as I understood the submission it was contended that it lacks precision, namely that the plaintiff was in possession of a dangerous weapon - with which proposition I agree - but further, that it was incapable of being defamatory - with which proposition I disagree.
11 The proposed contextual imputation (b), that the plaintiff was in possession of a prohibited weapon, is also, to put it shortly, captured by the imputations pleaded by the plaintiff.
12 I am firmly of the view that the purpose of s 16 is really quite simple. It is to operate in circumstances where a publication conveys various imputations, substantially different one from the other, but in respect of which the plaintiff elects to sue on one or some only. It entitles the defendant properly to defend the action by pleading the other imputations not sued upon, and justifying them to bring about a just result that otherwise an undeserving plaintiff, by reason of what was in fact published of that plaintiff, should not succeed.
13 The present exercise has been characterised by counsel for the plaintiff as a “back door” exercise, seeking to “get it right” or “nearly right” by adopting the language used by Hunt J in NRMA Insurance Limited v Amalgamated Television Services Pty Ltd (unreported, 14 July 1989) which I have cited in my judgment of McBride v The ABC [2000] NSWSC 747.
14 That really is a rhetorical submission that need not necessarily have been made because the motion, in my view, is otherwise absolutely without merit. The proposed contextual imputations, on no rational basis, can be considered to be different in substance from those found by the jury to have defamed Mr Blake, to arise additionally to those found by the jury to have defamed Mr Blake, or individually or collectively to have that quality which, if allowed and if proved and if relating to matters of public interest, would otherwise deprive Mr Blake of a verdict by reason of no further injury to his reputation having been caused by their publication.
15 I do not propose to say any more and refuse leave to amend.
16 The second application is for compulsory mediation under s 110K of the Supreme Court Act.
17 This is an action in which there has been an unsuccessful late application to amend, the plaintiff has the benefit of hearing days in a couple of weeks time for the assessment of damages founded upon the defendants hitherto not considering they had a defence and, in which as I understand it, although I do not believe I have any evidence of it but it has been raised on several occasions, an apology has been published.
18 The circumstances in which I ordered compulsory mediation in Waterhouse v Perkins [2001] NSWSC 13 on 25 January this year were distinctly different from those that presently apply, not least in the sense that there the party seeking mediation to a great extent relieved the court of making orders under s 110M relating to costs.
19 The present structure of the action listed for hearing in a couple of weeks time is that the only outstanding issue is the trial of the question of damages, any award of which would constitute a public vindication of the plaintiff. The plaintiff has the advantage of a hearing date fixed for a short trial. It would, in my view, be a disproportionate diversion of resources in those circumstances either to interfere with that trial in terms of it being part heard, to vacate it, or otherwise to make orders as to costs in relation to the mediation and I decline that application.
20 Both defendants are to pay the plaintiff's costs of the amended notice of motion.
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