Cotter v John Fairfax Publications Pty Ltd - [2003] NSWSC 503

CITATION: Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503

HEARING DATE(S): Monday 26 May 2003 - Tuesday 3 June 2003

JUDGMENT DATE:
22 July 2003

JUDGMENT OF: Simpson J

DECISION: Damages of $100,000 awarded to plaintiff

CATCHWORDS: defamation - justification defence - contextual truth defence - failure to comply with legal obligations - publication of imputations that further injure the reputation of the plaintiff - interstate defences - aggravated damages

LEGISLATION CITED: Defamation Act 1974, (NSW) s7A, s15, s16, s46, s46A
Local Government Act 1919 (NSW)
Local Government Act 1993, (NSW) s360, s373, s442, s443, s448, s449, s451, s457,
Evidence Act 1995 (NSW) s45, s140
Motor Accidents Compensation Act 1999 (NSW) s134

CASES CITED: Allen v John Fairfax and Sons Ltd, unreported, 2 December 1988
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, unreported, 24 December 2002
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Briginshaw v Briginshaw (1938) 60 CLR 336
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Clark v Ainsworth (1996) 40 NSWLR 463
Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 739; unreported, 7 September 2001
John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; 53 NSWLR 451
Jones v Dunkel (1959) 101 CLR 298
Polly Peck (Holdings) plc v Trelford [1986] 1 QB 1000
Triggell v Pheeney (1951) 82 CLR 497

PARTIES :
Barry Cotter - Plaintiff
John Fairfax Publications Pty Ltd - Defendant

FILE NUMBER(S): SC 20360/97

COUNSEL: T Molomby SC with R Rasmussen - Plaintiff
TD Blackburn with ATS Dawson - Defendant

SOLICITORS: Joseph G Capogreco & Associates - Plaintiff
Freehills - Defendant

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

SIMPSON J

Tuesday 22 July 2003

20360/97
Barry COTTER v JOHN FAIRFAX PUBLICATIONS PTY LTD
JUDGMENT

1 HER HONOUR: By statement of claim filed on 24 April 1997 the plaintiff, Mr Barry Cotter, claims damages against the defendant, John Fairfax Publications Pty Ltd, in respect of defamatory imputations published by it on 11 April 1997.

2 The matter of which the plaintiff complains appeared in the form of a news item in The Sydney Morning Herald, a daily newspaper circulating principally in Sydney, but also in other states and territories of Australia. It is relatively short, and it is convenient here to set it out in full. The reproduction of the news item which is in evidence shows that it appeared on page 3 of the newspaper and occupied a single column on the far right hand side of the page. At the top of the column was a photograph, identified as a photograph of the plaintiff, and captioned:

“… under fire from Marrickville council opponents.”

3 A headline reads:

“Probe into Mayor’s Decade of Deals”

4 The by-line of the author, Robert Wainwright, described as “Local Government Writer” followed. The body of the news item reads:

“Business interests and property purchases…

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: [2003] NSWSC 503
Decision Date: 22 July 2003

CaseChat Overview and Summary

The matter before the court involved an action for defamation brought by Cotter against John Fairfax Publications Pty Ltd. The dispute centred around the publication of articles in the Daily Telegraph newspaper that allegedly defamed Cotter by implying that he had failed to comply with legal obligations and had a propensity for criminal activity. The court was required to determine whether the defendant had successfully raised the defence of justification and whether the contextual truth defence applied. Additionally, the court needed to assess the impact of the publications on Cotter's reputation and the applicability of interstate defences.

The court examined whether the defendant had proven that the imputations made in the articles were true and whether they were relevant to the publication. The court also considered whether the defendant had provided sufficient evidence to establish the contextual truth defence, which requires the defendant to demonstrate that the truth of the imputations was relevant to the context in which they were published. The court further assessed whether the publications had caused further injury to Cotter's reputation and whether the interstate defences were applicable in this case. Finally, the court determined whether Cotter was entitled to aggravated damages.

The court found that the defendant had failed to establish the defence of justification, as the evidence did not support the truth of the imputations made in the articles. The court also concluded that the contextual truth defence was not applicable because the defendant had not demonstrated that the truth of the imputations was relevant to the context in which they were published. The court determined that the publications had caused further injury to Cotter's reputation and that the interstate defences were not applicable. The court awarded Cotter aggravated damages, finding that the defendant's conduct was egregious and had caused significant harm to Cotter's reputation. The court ordered the defendant to pay Cotter damages, including aggravated damages, and to publish an apology and correction in the Daily Telegraph newspaper.

Orders