Campbell v Regional Publishers Pty Limited
[2000] NSWSC 654
•9 June 2000
CITATION: Campbell v Regional Publishers Pty Limited [2000] NSWSC 654 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20916/97 HEARING DATE(S): 9 June 2000 JUDGMENT DATE: 9 June 2000 PARTIES :
Margaret CAMPBELL (Plaintiff/Respondent)
REGIONAL PUBLISHERS PTY LIMITED (Defendant/Applicant)
JUDGMENT OF: Simpson J at 1
COUNSEL : Mr C Evatt (Plaintiff/Respondent)
Mr T Blackburn (Defendant/Applicant)SOLICITORS: Adrian Daly (Plaintiff/Respondent)
Gilbert & Tobin (Defendant/Applicant)CATCHWORDS: Defamation - defence and reply filed - application by the defendant in relation to reply DECISION: Application dismissed. Defendant ordered to pay plaintiff's costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation ListSIMPSON J
Friday 9 June 2000
20916/97
Margaret CAMPBELL v REGIONAL PUBLISHERS PTY LIMITEDJudgment
HER HONOUR :
1 In these proceedings by second further amended statement of claim filed on 15 March 2000 the plaintiff claims damages for defamation allegedly published on 1 February 1992 in the Macleay Argus.2 Previous decisions have resolved questions relating to capacity of the matter complained of to defame the plaintiff, and the imputations then pleaded.
3 A defence and a reply have been filed. The present issue concerns the reply in which the plaintiff alleges that the defences potentially available to the defendant would be defeated by reason of express malice motivating the defendant and purports to particularise that plea.
4 The particular of malice which is in question is contained in paragraph 2 (a) of the reply and asserts that in two editions of the Macleay Argus including that in which the matter complained of was published "the defendant carried out a vendetta against aborigines". The particular goes on to assert that "plaintiff is of course an aborigine". Each of these passages is challenged and on behalf of the defendant it was argued that the particulars as drawn should be struck out.
5 The first argument was that the assertion that the defendant was carrying out a vendetta against aborigines cannot support either of the two available heads under which malice may be pleaded and established.
6 It is well-known and well-established that the use of an occasion which would otherwise be privileged, for a purpose for which the privilege is not provided can amount to malice and in my opinion the particular, as framed is plainly to be read as asserting that the defendant used the occasion of the publication, if it is shown otherwise to have been privileged, for the purpose of furthering a vendetta against aborigines as a class.
7 I can see no difficulty or embarrassment in defending that particular. Of course this says nothing about whether the plaintiff can adduce evidence sufficient to sustain the allegation. I am concerned only with whether the particular as framed is such as, if supported by evidence, could sustain a finding of malice. I am satisfied that it can.
8 The second complaint that was made relates to the second particular extracted. The plaintiff has conceded that the words "of course" can and should be deleted and I grant leave to make that amendment.
9 It was argued that the assertion is irrelevant to the particularisation of malice. I reject this contention. The assertion that the defendant was carrying out a vendetta against aborigines would have no materiality unless the plaintiff was shown to be a member of that race and therefore potentially caught up in any vendetta which she can establish.
10 Some further complaint is made about inadequate particularisation but this I think is a matter that should be explored between the parties by the request for further particulars to which the defendant claims it is entitled and I do not propose to make any orders for further particulars in the absence of a specific request.
11 Accordingly the application made by the defendant in relation to the reply is dismissed. I order the defendant to pay the plaintiff's costs.
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