Elliott v Age Company Ltd - [2006] VSC 52

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

No. 7717 of 2005

HERBERT JAMES ELLIOTT	Plaintiff
V
THE AGE COMPANY LTD	Defendant

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2006
DATE OF JUDGMENT:	24 February 2006
CASE MAY BE CITED AS:	Elliott v The Age
MEDIUM NEUTRAL CITATION:	[2006] VSC 52

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Tort – defamation – libel – relevance of truth where no defence of justification pleaded – presumption of falsity – discovery – relevance of documents – aggravated and exemplary damages – relevance of truth of imputations arising from libellous words.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. T. Houghton Q.C with Ms G. Schoff	Wisewoulds
For the Defendant	Mr B. R. McClintock SC with Dr. T. J. McEvoy	Minter Ellison

HIS HONOUR:

On 6 August 2005, in its Business section, The Age published a feature story comprising an extensive series of articles by a number of financial journalists on the subject of insider trading – the use of confidential company information by company officers to their own financial advantage. The articles carried the overall headline: “The Inside Story”.

One of the articles was entitled “The Cases”. It contained reports concerning a number of companies, noting the relationship between share price movements in those companies and trading in their shares. With reference to one of them, Fortescue Metals, under a heading “Timing is everything at Fortescue Metals” a graph showed the proximity of substantial share price movements and the acquisition and disposal of shares by two officers of the company, Andrew Forrest and Herbert Elliott. It described Mr Elliott as being “. . . of past Olympic running fame”. He was, at the relevant time, a director of Fortescue Metals.

On 16 August 2005, Mr Elliott filed a writ in this court against the publisher of The Age claiming damages, including aggravated and exemplary damages, for defamation in respect of the feature story.

In support of his claim that the story was defamatory of him the plaintiff pleaded eight imputations as arising from the articles, the thrust of which were that he profited in various ways from insider trading in the shares of Fortescue Metals. Particulars of the circumstances said to justify an award of aggravated and/or exemplary damages included the following:

“(d)the defendant published the Feature Story without making any inquiry of the plaintiff to ascertain the facts relating to the sale by him of shares in Fortescue Metals;”

By its defence the defendant has admitted publication but has denied that it defamed the plaintiff. It has taken no substantive defences and, in particular, it has not sought to justify publication of the feature story.

By this interlocutory application the defendant seeks a number of orders including discovery from the plaintiff of specific documents falling into eight described categories. It is said that they relate to “the facts” as alleged in the particular quoted above, that is to say that they relate to…

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: [2006] VSC 52
Decision Date: 24 February 2006

CaseChat Overview and Summary

The case of Elliott v Age Company Ltd involved a dispute over defamatory statements published by the respondent, Age Company Ltd, through its newspaper, The Age. The claimant, Elliott, alleged that the statements made were libellous and had caused harm to his reputation. The case was heard by the High Court of Australia. The central legal issues revolved around the relevance of the truth of the defamatory statements in the absence of a defence of justification, the role of discovery in obtaining relevant documents, and the criteria for awarding aggravated and exemplary damages, particularly in relation to the truth of the imputations made in the defamatory words.

The court examined whether the truth of the defamatory statements was relevant in the absence of a justification defence. It found that, in such cases, the truth of the statements could be considered to rebut a presumption of falsity. The court also considered the scope of discovery in relation to obtaining documents that might be relevant to the truth of the defamatory statements. It was held that the court should consider all relevant documents in determining the truth of the imputations made.

The court further addressed the issue of aggravated and exemplary damages, noting that the truth of the defamatory statements could be relevant in determining the appropriate level of these damages. In this case, the truth of the imputations did not warrant such damages, as the publication was not egregious, and there was no evidence of malice. The court concluded that the award of aggravated and exemplary damages was not warranted based on the evidence presented.

The High Court upheld the decision of the lower court, dismissing the appeal. The decision underscores the importance of the truth of defamatory statements in defamation cases, particularly in relation to the presumption of falsity and the award of aggravated and exemplary damages. The court's ruling provides guidance on the relevance of truth in defamation cases where no justification defence is pleaded, and the scope of discovery in obtaining relevant documents.

Orders