Cotter v John Fairfax Publications Pty Ltd - [2001] NSWSC 587

CITATION: Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20360/97

HEARING DATE(S): 15 June 2001

JUDGMENT DATE:
13 July 2001

PARTIES :

Barry Cotter - Plaintiff
John Fairfax Publications Pty Ltd

JUDGMENT OF: Simpson J

COUNSEL : T Molomby - Plaintiff
T Blackburn - Defendant

SOLICITORS: Joseph G Capogreco & Associates
Freehill Hollingdale & Page - Defendants

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Palmer v John Fairfax and Sons Ltd (1986) 5 NSWLR 727
Ryan v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 396
Carnell v Spier, unreported, 3 June 1997
Packer v Australian Broadcasting Corporation, unreported, 31 March 1993
Wright v Australian Broadcasting Commission [[1977] 1 NSWLR 697]
White & Co. v Credit Reform Association and Credit Index Limited [[1905] 1KB 653]
Howard v Nationwide Publishing Services Pty Ltd (unreported, 26 February 1987)
John Fairfax & Sons Ltd v Cojuangco (1998) 165 CLR 346

DECISION: Defendant ordered to answer all interrogatories, with the rider that it be excused (at least at this stage) from giving any answer to the extent that the answer might identify the source of its information. Defendant pay the whole of the plaintiffs costs of the application.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

13 July 2001

Barry COTTER v JOHN FAIRFAX PUBLICATIONS PTY LTD

Judgment

HER HONOUR :

1 The plaintiff has sued the defendant, alleging that certain imputations defamatory of him were conveyed by a news item in the Sydney Morning Herald, a newspaper published by the defendant, on 11 April 1997. A defence to the statement of claim has been filed to which the plaintiff has filed a reply. The pleadings are therefore closed.

2 The plaintiff has administered interrogatories to the defendant, some but not all of which the defendant has answered. The defendant has stated its objection to those interrogatories which it has not answered. The present issue concerns whether the defendant should be required to answer all or any of those interrogatories to which it has taken objection.

3 It is necessary to state, briefly, the background as it can be discerned from the pleadings.

4 The matter complained of was a news item under the headline “Probe in Mayor’s Decade of Deals”. The plaintiff is named as the Mayor of a suburban council. The news item concerns asserted enquiries into the plaintiff’s “property and business transactions”. Suggestions of conflict of interest in the plaintiff’s role in determining development applications may be perceived.

5 The plaintiff has pleaded that six defamatory imputations are conveyed by the publication. Of these, only three are relevant to the present issue. They are framed as follows:

“(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…

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: [2001] NSWSC 587
Decision Date: 13 July 2001

CaseChat Overview and Summary

The case of Cotter v John Fairfax Publications Pty Ltd involves the plaintiff, Barry Cotter, suing the defendant, John Fairfax Publications Pty Ltd, for defamation. The defamation arose from a news item in the Sydney Morning Herald, published by the defendant, which allegedly contained defamatory imputations about the plaintiff, who was the Mayor of a suburban council. The plaintiff has alleged six defamatory imputations, three of which are relevant to the present issue concerning interrogatories. The defendant has raised the defences of qualified privilege and contextual truth. The primary legal issue in this case is whether the defendant should be required to answer all or some of the interrogatories to which it has taken objection. The interrogatories were intended to be directed towards the reasonableness of the defendant's conduct in publishing the defamatory imputations, a crucial aspect of the defence of qualified privilege.

The court considered the nature and purpose of interrogatories, noting that while they can be a valuable tool in litigation, they must be properly directed to the issues identified in the pleadings and not be used oppressively. The court observed that interrogatories can help narrow the issues to be fought and the scope of evidence required. The court rejected the defendant's argument that interrogatories should be limited to disclosing all information in the defendant's possession at the time of publication, stating that interrogatories should be tailored to the specific issues in the case. The court also found that the defendant's objections to certain interrogatories as vexatious or oppressive were unfounded.

The court ruled that the defendant must answer all interrogatories, with the exception of those parts that might reveal the source of its information, in light of the "newspaper rule." The court ordered the defendant to pay the plaintiff's costs of the application, noting that the only successful argument raised by the defendant was the newspaper rule, which was raised at the hearing and not previously.

Orders