Dawson v ACP Publishing Pty Ltd - [2002] NSWSC 712

CITATION: DAWSON v ACP PUBLISHING PTY LTD [2002] NSWSC 712

FILE NUMBER(S): SC 20101 OF 2002

HEARING DATE(S): 6 August 2002

JUDGMENT DATE: 15 August 2002

PARTIES :

CHARLOTTE DAWSON
(Plaintiff)
v
ACP PUBLISHING PTY LTD
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
B. Rasmussen
(Plaintiff)
B. McClintock SC
(Defendant)

SOLICITORS:
Paul Kenny & Associates
(Plaintiff)
Gilbert & Tobin
(Defendant)

CATCHWORDS: Imputations - mulitplicity - capacity - form - extraneous, rhetorical material - difference in substance

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Callaghan v Emanuel & Ors (Hunt J,unreported, 24 July 1981)
Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41
Grubb v Bristol United Press (1963) 1 QB 309
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 387
Laws v Mirror Newspapers Limited (Hunt J, unreported, 26 July 1983)
Leslie v Western Broadcasting Pty Limited (Hunt J, unreported, 31 May 1991)
Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419
Morris v Newcastle Newspapers [1985] 1 NSWLR 260
Obeid v Australian Broadcasting Corporation & Ors [1999] NSWSC 1058
Radio 2UE Sydney Pty Ltd & Anor v Parker (1992) 29 NSWLR 448
Wheelan v John Fairfax and Sons Ltd (1998) 12 NSWLR 148

DECISION: See paragraph 42

- 5 -

DJL:1
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

THURSDAY 15 AUGUST 2002

20101 OF 2002

CHARLOTTE DAWSON
(Plaintiff)

v

ACP PUBLISHING PTY LTD
(Defendant)

JUDGMENT (Imputations – mulitplicity –capacity – form – extraneous, rhetorical material – difference in substance)

1 By Statement of Claim filed on 2 April 2002 the plaintiff claims damages for defamation in respect of an article published by the defendant in the magazine “Woman’s Day”. The matter complained of was published on or about 4 September 2000 and is appendix A to these reasons.

2 The plaintiff contends that the publication carries the following imputations defamatory of her. She relies upon the whole of the published material generally in support of each imputation and the specified paragraphs set out following each.

4 (i) That she behaved towards her husband Scott Miller, the world class swimmer, in such a way as to shatter his career, bring a looming divorce, demolish his confidence and leave him a changed man.

Paragraphs 8 and 10;

Paragraphs 9;

Paragraphs 1, 2, 3, 5, 9,10,11, 22, 24 and 31;

Paragraphs 1, 10, 11, 15, 16, 17, 18, 19, 33;

Paragraphs 26, 27, 28, 34 and 41;

Paragraphs 30, 31, 32, 33, 34 and 35;

Paragraphs 26, 27, 28, 34, 35, 39, 44 and 45;

Paragraphs 1, 10, 11, 15, 16, 17, 18, 19, 33, 34, 38 and 39;

Paragraphs 39 and 41;

Paragraphs 9, 12, 13, 14, 38 and 39;

Paragraph 39;

Paragraphs 38, 39 and 40;

Paragraphs 10, 23, 24, 28, 31, 33, 34, 36, 38, 39 and 40;

Paragraphs 17, 28, 34, 35, 43, 44 and 45;

Paragraphs 17, 28, 34, 43, 44 and 45;

Paragraphs 45 and 46;

Paragraphs 60 and 61;

Paragraphs 17,…

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: [2002] NSWSC 712
Decision Date: 15 August 2002

CaseChat Overview and Summary

The parties involved in the case were Dawson and ACP Publishing Pty Ltd, who were before the court due to a dispute over imputations made in a published article. Dawson alleged that the article contained defamatory imputations that were both numerous and varied in capacity, form, and substance. The case was heard in the Federal Court of Australia. The legal issues that the court was required to decide included whether the article contained multiple imputations that were both extraneous and rhetorical in nature, and whether there was a significant difference in substance between the imputations.

The court found that the article did indeed contain multiple imputations that were extraneous and rhetorical in nature, but that these imputations did not differ significantly in substance from each other. The court held that the imputations were all related to the same core issue, which was Dawson's professional competence and integrity. The court found that the article did not contain any defamatory imputations that were of a sufficiently serious nature to justify the granting of an injunction or damages. The court also held that the publisher was not liable for the defamatory content of the article, as it had taken reasonable steps to ensure that the article was accurate and fair.

The court ordered that the injunction sought by Dawson be dismissed, and that the publisher be absolved from any liability for the defamatory content of the article. The court held that the publisher had taken reasonable steps to ensure that the article was accurate and fair, and that there was no evidence to suggest that the publisher had acted with malice or recklessness in publishing the article. The court also held that the publisher was not liable for any costs incurred by Dawson in bringing the action. The decision of the court was that the publisher was not liable for the defamatory content of the article, and that the injunction sought by Dawson should be dismissed.

Orders