Brian Stanley Fisher v Channel Seven Sydney Pty Ltd (No 2)
[2014] NSWSC 1593
•16 September 2014
Supreme Court
New South Wales
Medium Neutral Citation: Brian Stanley Fisher v Channel Seven Sydney Pty Ltd (No 2) [2014] NSWSC 1593 Hearing dates: 16 September 2014 Decision date: 16 September 2014 Before: Rothman J Decision: 1.Evidence of prior publication admissible for the limited purposes outlined in these reasons, despite general rule.
Catchwords: DEFAMATION - evidence of similar imputations conveyed by another - objection as to relevance - peculiar damages claim based on hurt associated with divorce and loss of contract arising from defamation - publication relevant only to causation of damage issue in that regard Legislation Cited: Defamation Act 2005
Evidence Act 1995Cases Cited: Associated Newspapers v Dingle [1964] AC 371
Carson v John Fairfax & Son Ltd [1993] HCA 31; (1993) 178 CLR 44
Chappell v Mirror Newspapers Ltd (NSWCA, 14 June 1984, unreported)Category: Interlocutory applications Parties: Brian Stanley Fisher (Plaintiff)
Channel Seven Sydney Pty Ltd (First Defendant)
David Richardson (Second Defendant)Representation: Counsel:
C.A Evatt with R. Rasmussen & M. Fozzard (Plaintiff)
M. Richardson (First and Second Defendants)
Solicitors:
Michael Kreveld Legal (Plaintiff)
Addisons Lawyers (First and Second Defendants)
File Number(s): 2011/408095 None
EX TEMPORE Judgment
HIS HONOUR: Before the Court is an objection to a question that has been asked, being a question that is in or to the effect that there had been a publication earlier in the day, of material similar to the material that is said to be defamatory of the plaintiff. The objection is taken essentially on the basis that such material, being other publications, cannot be relevant to any issue before the Court.
Reliance is placed upon two judgments. The first of them in time is the judgment of the House of Lords in Associated Newspapers v Dingle [1964] AC 371. The House of Lords there determined that evidence of the contents of other publications, in or to the same effect as the impugned libel, could not be used in proceedings in defamation as a means of diminishing the reputation of the plaintiff or mitigating the damages. Reference is made particularly to the passage in the judgment of Lord Radcliffe at 391, the judgment of Lord Denny at 410-411 and 416.
The judgment of the House of Lords in Associated Newspapers v Dingle was cited with authority and relied upon by the Court of Appeal at this stage in Chappell v Mirror Newspapers Ltd (NSWCA, 14 June 1984, unreported, Moffitt P and Samuels and Priestley JJ).
I do not recite, at least in these ex tempore reasons, passages from the judgment, but the judgment went to directions to the jury in relation to defences under s 13 and ss 15-16 of the Defamation Act 2005, again, going to issues of bad reputation, the truth of the contents of the articles in question, and the issues associated with diminished damages, but diminished damages on the basis of a tarnished reputation already existing.
The orders of the Court are instructive, the judgment having been delivered by his Honour, the President, in which their Honours Samuels and Priestley JJ agreed. The orders were that the defence under s 13 of the Defamation Act should not have been left to the jury.
There was a misdirection in relation to diminished reputation or prior bad reputation pursuant to s 13 of the Defamation Act. There was a misdirection relating to the truth of imputations and the use of prior publications to establish the truth of the publications. Prior bad or diminished reputation was not relevant to a defence under s 16 of the Defamation Act, and the prior publications could not be used to prove the fact or opinions recited in them. Nor was it evidence of bad or diminished reputation. On that basis, his Honour concluded that exhibit 9, which contained the relevant publications, was not admissible. Interestingly, the last order of his Honour was to this effect:
"The material in exhibit 9, which I interpose were the prior publications on which the defendant at trial had relied, was prone to cause prejudice and a miscarriage of justice unless it was admissible, and if admissible, its uses were clearly defined and limited."
His Honour then allowed the appeal and set aside the judgment at first instance.
Each of those judgments were decided before the provisions of the Evidence Act applied. There is a further judgment of Forrest J in the Supreme Court of Victoria in French v Triple M Melbourne Pty Ltd (No 4) [2008] VSC 550 in which his Honour held that the evidence of other publications, being articles emanating from print, radio and television, at or around the time of the impugned program before the Court in the proceedings, were not admissible in mitigation of damages.
His Honour relied on Dingle and Carson v John Fairfax & Son Ltd [1993] HCA 31; (1993) 178 CLR 44. His Honour seems not to have been taken, understandably, given that it was unreported, to the judgment of the Court of Appeal in Chappell. In Carson v John Fairfax at 44, McHugh J, relying on Dingle, said this:
"The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori at common law, evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff's reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff's reputation at that time, but it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation."
Again, the statement by McHugh J in Carson was made prior to the provisions of the Evidence Act 1995 being promulgated. The Evidence Act renders relevant any material that could rationally affect, directly or indirectly, the assessment of the possibility of the existence of a fact in issue in the proceeding. In these proceedings, the plaintiff relies upon distress as part of his damages. It also relies upon the fact that the plaintiff stopped getting charter work, and it relies upon the fact that the plaintiff's licence was cancelled.
The evidence that is put, or sought to be put at the moment, I hasten to add, is not the content of the publication but the fact that the publication had issued. It may be that the publication will be sought to be adduced.
In any event, it seems to me that the probability of the publication by Channel Seven causing charter work to stop, the licence to be cancelled and the agitation by the families who were suspended to be made public, is a matter that is the probability of which is likely to be affected, directly or indirectly, by the fact that there were other publications. On that basis, it is relevant to those causative issues. For those reasons, I will allow the evidence to be adduced.
I make it clear that I will tell the jury that the evidence of any other publication is irrelevant to any task they have before them. I hasten to add, I will probably tell them that evidence of the extent of concern or distress is also irrelevant. I so rule.
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Decision last updated: 17 November 2014
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