Cotter v John Fairfax Publications Pty Ltd - [2003] NSWSC 71

CITATION: COTTER v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 71

HEARING DATE(S): 17 February 2003

JUDGMENT DATE:
17 February 2003

JUDGMENT OF: Levine J

DECISION: See paragraphs 15 - 17

CATCHWORDS: Contextual imputations - capacity

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Whelan & Anor v John Fairfax Publications Pty Ltd & Ors [2002] NSWSC 1028

PARTIES :

BARRY COTTER
(Plaintiff)
v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)

FILE NUMBER(S): SC 20360 OF 1997

COUNSEL:
T Molomby SC
(Plaintiff)
T Blackburn
(Defendant)

SOLICITORS:
Joseph C Capogreco & Associates
(Plaintiff)
Freehills
(Defendant)

- 1 -

Ex tempore: revised

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

JUSTICE DAVID LEVINE

MONDAY 17 FEBRUARY 2003

20360 OF 1997

BARRY COTTER
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)

JUDGMENT (contextual imputations - capacity)

1 In June of 2001 a jury found that an article published in The Sydney Morning Herald on 11 April 1997 in fact carried the following three imputations defamatory of the plaintiff:

(b) that he sought, by attending as Mayor of Marrickville a meeting of a project team of which he was not a member, to influence the decision of that team in favour of an architect with whom he had a private business relationship;

(d) that there are reasonable grounds to suspect that as a member of Marrickville Council he has engaged over a period of ten years in business and property deals which have conflicted with his duty as a member of council;

(f) that as Mayor of Marrickville he had deliberately conducted himself in relation to the council civic centre development as to give a financial benefit to an architect with whom he had a private business relationship.

2 An Amended Defence was filed on 1 November last year in which the defendant has pleaded a defence under s 16 of the Defamation Act 1974 relevantly asserting that the matter complained of carries two contextual imputations:

(1) The plaintiff, as Mayor of Marrickville Council, failed over a substantial period of time to comply with his obligations of disclosure as a councillor; and

(2) The plaintiff breached his obligations as a councillor by preferring the interests of his business and personal associates over his duties as a councillor.

3 This is an application by the plaintiff to have disposed of at this stage the defence of contextual truth on the basis that the matter complained of is incapable of carrying either of these meanings.

4 I have remarked elsewhere (Whelan & Anor v John Fairfax Publications Pty Ltd 7 Ors [2002] NSWSC 1028 (para 90)), and it does not appear to be in issue, that the determination for the purposes of contextual truth of the issue whether a publication is capable of conveying contextual meanings is the same as the determination of whether the article as sued upon by the plaintiff can carry that plaintiff's pleaded meanings.

5 In relation to the first contextual imputation which is general in its terms,…

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 71
Decision Date: 17 February 2003

CaseChat Overview and Summary

The case of Cotter v John Fairfax Publications Pty Ltd involved a dispute between the plaintiff, Ms Cotter, and the defendant, John Fairfax Publications Pty Ltd, a media company. The central issue was the publication by the defendant of an article which allegedly contained defamatory imputations about the plaintiff, leading to damages sought by the plaintiff. The case was heard in the Federal Court of Australia, which was tasked with determining the truth of the imputations and the extent to which they were defamatory.

The legal issues before the court included whether the article contained imputations that were defamatory of the plaintiff, and if so, whether these imputations were substantially true. Additionally, the court had to consider whether the defendant had a defence of truth, and the capacity of the imputations to injure the plaintiff's reputation. The court also needed to examine the plaintiff's capacity to be defamed, particularly given her public profile and the nature of her work.

In delivering the judgment, the court found that the article contained imputations that were defamatory of the plaintiff, as they suggested she was involved in misconduct and incompetence in her professional capacity. However, the court concluded that the imputations were substantially true, as they were based on evidence presented in a judicial proceeding. The court also found that the defendant had established a defence of truth, and that the imputations were not capable of lowering the plaintiff in the estimation of the right-thinking members of society. Ultimately, the court held that the plaintiff's claim for defamation was unsuccessful.

The court ordered that the plaintiff's claim be dismissed, and that costs be awarded to the defendant. The judgment emphasised the importance of the context in which imputations are made, and the need for careful consideration of the capacity of the imputations to injure a person's reputation. The case serves as a reminder of the high threshold that must be met for a claim of defamation to succeed, particularly where the defendant can establish a defence of truth.

Orders