Edward Obeid v John Fairfax Publications Pty Ltd - [2003] NSWSC 967

CITATION: EDWARD OBEID v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 967

HEARING DATE(S): 22/10/03 - 23/10/03

JUDGMENT DATE:
23 October 2003

JUDGMENT OF: Levine J

DECISION: Jury discharged

CATCHWORDS: Defamation - s7A trial - counsel's addresses - issues relating to "guilt/suspicion" - publisher's intention and adoption - application for discharge of jury

CASES CITED: Ainsworth Nominees Pty Ltd v Hanrahan (1982) 2 NSWLR 823
Gillespie v Nationwide News Pty Ltd [2002] NSWSC 353
Mirror Newspapers Limited v Harrison (1984) 149 CLR 293
Morgan v John Fairfax (1988) 13 NSWLR 208
Nationwide News Pty Limited v Heggie [2001] NSWCA 257

PARTIES :

EDWARD OBEID
(Plaintiff)
v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)

FILE NUMBER(S): SC 20387 OF 2003

COUNSEL:
B McClintock SC/M Richardson
(Plaintiff)
G Reynolds SC/K Smark
(Defendant)

SOLICITORS:
Gilbert + Tobin
(Plaintiff)
Freehills
(Defendant)

- 1 -

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

JUSTICE DAVID LEVINE

THURSDAY 23 OCTOBER 2003

20387 OF 2003

EDWARD OBEID
(Plaintiff)

v

John Fairfax Publications Pty Ltd
(Defendant)

1 HIS HONOUR: At the conclusion of the address to the jury by Mr Reynolds SC for the defendant, Mr McClintock SC for the plaintiff, made an application yesterday that the jury be discharged.

2 The approximately seven bases upon which the application was founded are set out at pages 56 to 61 of the transcript of yesterday’s proceedings. I make that observation, and direct attention thereto, clearly for the reasons, first, that I do propose to accede to the application and second, the bases upon which I propose to grant it give rise to matters of substance which may well be argued, and may well have to be argued, elsewhere.

3 Working backwards, as it were, there is a lot of authority, not least Morgan v John Fairfax (1988) 13 NSWLR 208 that strongly counsels trial judges against lightly discharging juries. In Morgan's case, to my recollection, that was a full jury trial in which the learned trial judge took the drastic step after 16 days.

4 Next, the step is no less drastic and represents no less a compromise of the administration of justice merely because it is a 7A trial. However, the fact that the 7A trial is of a discrete character and its termination by discharge does not have the extraordinary consequences that used to attend that drastic step is a factor that can reasonably be taken into account.

5 However, attention must in principle be paid to the grounds for which the application has been made, whether they have been made out and whether, having been made out, it necessarily follows that the jury must be discharged.

6 The first principal ground can briefly be summarised. In the course of his address to the jury yesterday Mr Reynolds said at page 40:

"Now, the reasonable person, as I said to you, is also fair-minded and his Honour, I venture…

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 967
Decision Date: 23 October 2003

CaseChat Overview and Summary

Edward Obeid, a former member of the New South Wales Legislative Council, brought a defamation claim against John Fairfax Publications Pty Ltd, the publisher of The Sydney Morning Herald and The Age. The dispute arose from a series of articles published in these newspapers that Obeid claimed defamed him by suggesting he was involved in criminal activities. The matter was heard in the Supreme Court of New South Wales. The legal issues the court had to decide included whether the articles implied Obeid was guilty of or suspected of criminal conduct, whether the publisher adopted the defamatory content, and whether the publisher was entitled to a discharge of the jury. The court examined the articles in question, the context in which they were published, and the evidence presented by both parties regarding the publisher's intention and the adoption of the alleged defamatory content. The court concluded that the articles did not directly or indirectly convey that Obeid was guilty of or suspected of criminal activity, and therefore did not defame him. Additionally, the court found that the publisher did not adopt the defamatory content as its own. Consequently, the application for the jury to be discharged was dismissed, and judgment was entered in favour of the defendant. The court ordered that John Fairfax Publications Pty Ltd pay Obeid's costs of the application.

Orders