New South Wales
Court of Appeal
CITATION: Echo Publications Pty. Ltd. v. Tucker & Anor.; Fast Buck$ v. Tucker & Anor. [2007] NSWCA 73 HEARING DATE(S): 8 and 9 August 2006
JUDGMENT DATE:
5 April 2007JUDGMENT OF: Mason P at 1; Hodgson JA at 2; McColl JA at 141 DECISION: 1. Echo Publications’ appeal dismissed with costs. 2. Fast Buck$’s appeal dismissed with costs. 3. Mr. Tucker’s cross-appeal dismissed, with no order as to costs. CATCHWORDS: DEFAMATION - Imputations - Whether jury's findings unreasonable - Qualified privilege - Response to an attack - Whether privilege attaches to a riposte to a response - Whether privilege lost by endorsement of response - Privilege under s.22 of Defamation Act 1974 - Defence of comment - Adequacy of judge's reasons. LEGISLATION CITED: Defamation Act 1974 ss.15, 22, 30, 32, 33, 34 CASES CITED: Adam v. Ward [1917] AC 309
Amalgamated Television Services Pty. Ltd. v. Marsden [2002] NSWCA 419
Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30
Bashford v. Information Australia (Newsletters) Pty. Limited [2004] HCA 5, (2004) 218 CLR 366
Bass v. TCN Channel Nine Pty. Limited [2003] NSWCA 118, (2003) 60 NSWLR 251
Bennette v. Cohen [2005] NSWCA 341, (2005) 64 NSWLR 81
Charlwood Industries Pty. Ltd. v. Brent [2002] NSWCA 2001
Collins v. Ryan (1991) 6 BR 229
Fox v. Percy [2003] HCA 22, (2003) 214 CLR 118
Horrocks v. Lowe [1975] AC 135
House v. The King (1936) 55 CLR 499
Hunter v. Chief Constable of the West Midlands [1982] AC 529
John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485
John Fairfax Publications Pty. Ltd. v. Rivkin (2003) 77 ALJR 1657
Kennett v. Farmer [1988] VR 991
Loveday v. Sun Newspapers Limited (1938) 59 CLR 503
Mifsud v. Campbell (1991) 21 NSWLR 725
Mundey v. Askin [1982] 2 NSWLR 369
Penton v. Calwell (1945) 70 CLR 219
Radio 2UE Sydney Pty. Limited v. Parker (1992) 29 NSWLR 448
Roberts v. Bass [2002] HCA 57, (2002) 212 CLR 1
Rogers v. The Queen (1994) 181 CLR 251
Walton v. Gardiner (1993) 177 CLR 378PARTIES: Echo Publications Pty. Ltd - appellant
Ross Tucker - 1st respondent
Fast Buck$ (aka John Anderson) - 2nd respondentFILE NUMBER(S): CA 40761/05; 40061/06 COUNSEL: Mr. B.R. McClintock SC for appellant
Mr. T.S. Hale SC with Mr. H.S. White for 1st respondent
Mr. Fast Buck$ appeared in personSOLICITORS: Banki Haddock Fiora, Sydney for appellant
Elliot & Sochacki, Mullumbimby for 1st respondent
Mr. Fast Buck$ appeared in personLOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20472/00 LOWER COURT JUDICIAL OFFICER: Patten AJ LOWER COURT DATE OF DECISION: 1 September 2005 LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 865
CA 40761/05
CA 40061/06
SC 20472/00Thursday 5 April 2007MASON P
HODGSON JA
McCOLL JA
ECHO PUBLICATIONS PTY. LTD. V. TUCKER & ANOR.
FAST BUCK$ V. TUCKER & ANOR.
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- AGLC
- Echo Publications Pty Ltd v Tucker [2007] NSWCA 73
- Case
- [2007] NSWCA 73
- Decision Date
CaseChat Overview and Summary
Echo Publications Pty Ltd and Fast Buck$ sought to appeal a defamation judgment awarded to Mr. Tucker. The dispute concerned publications made by Echo Publications and Fast Buck$ which Mr. Tucker alleged were defamatory. The appeals were heard by the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the jury's findings that the publications were defamatory and that the defence of qualified privilege was not made out were unreasonable. Specifically, the court had to consider whether qualified privilege attached to a response to an attack, and whether that privilege was lost by the endorsement of that response. The court also considered the application of section 22 of the Defamation Act 1974 (NSW) and the adequacy of the trial judge's reasons.
The Court of Appeal found that the jury's findings were open to them on the evidence presented. Regarding qualified privilege, the court held that while privilege can attach to a response to an attack, the privilege is not absolute and can be lost if the response goes beyond what is reasonably necessary to rebut the attack. The court determined that the publications in question did exceed the bounds of reasonable rebuttal and therefore the defence of qualified privilege was not established. The court also found no error in the application of section 22 or the adequacy of the trial judge's reasons.
Consequently, the appeals by Echo Publications Pty Ltd and Fast Buck$ were dismissed with costs. Mr. Tucker's cross-appeal was also dismissed, but with no order as to costs.
The primary legal issues before the Court of Appeal were whether the jury's findings that the publications were defamatory and that the defence of qualified privilege was not made out were unreasonable. Specifically, the court had to consider whether qualified privilege attached to a response to an attack, and whether that privilege was lost by the endorsement of that response. The court also considered the application of section 22 of the Defamation Act 1974 (NSW) and the adequacy of the trial judge's reasons.
The Court of Appeal found that the jury's findings were open to them on the evidence presented. Regarding qualified privilege, the court held that while privilege can attach to a response to an attack, the privilege is not absolute and can be lost if the response goes beyond what is reasonably necessary to rebut the attack. The court determined that the publications in question did exceed the bounds of reasonable rebuttal and therefore the defence of qualified privilege was not established. The court also found no error in the application of section 22 or the adequacy of the trial judge's reasons.
Consequently, the appeals by Echo Publications Pty Ltd and Fast Buck$ were dismissed with costs. Mr. Tucker's cross-appeal was also dismissed, but with no order as to costs.
Orders
Orders of the court
1. Echo Publications' appeal dismissed with costs. 2. Fast Buck$'s appeal dismissed with costs. 3. Mr. Tucker's cross-appeal dismissed, with no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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