Eoin Michael O'Neill v Queensland Newspapers Pty Ltd - [2011] NSWSC 1415

Supreme Court

New South Wales

Medium Neutral Citation: Eoin Michael O'Neill v Queensland Newspapers Pty Ltd & Ors [2011] NSWSC 1415
Hearing dates: 14.11.11
Decision date: 25 November 2011
Before: Nicholas J
Decision:
Par 22

Catchwords: DEFAMATION - pleadings - whether Lange qualified privilege defence should be struck out - objections to contextual imputations on form and capacity
Legislation Cited: Defamation Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Clines v Australian Consolidated Press Ltd (1966) 67 SR(NSW) 364
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511
Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63; (2006) 94 SASR 196
Category: Interlocutory applications
Parties: Eoin Michael O'Neill - plaintiff
Queensland Newspapers Pty Ltd - first defendant
News Digital Media Pty Ltd - second defendant
Tuck Thompson - third defendant
Representation: Counsel:
S Littlemore QC - plaintiff
T D Blackburn SC - defendants
Solicitors:
Goldsmiths Lawyers - plaintiff
Thynne & Macartney - defendant

File Number(s): 10/260431
Publication restriction: N/A

Judgment

The plaintiff's application is for orders under Uniform Civil Procedure Rules 2005 Pt 14.28 striking out from the defence to the second further amended statement of claim the Lange defence pleaded in par 7, and the contextual imputations pleaded in pars 8(a) and (b).

The Lange defence

In par 7 of the defence the defence of qualified privilege as extended in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 was pleaded, claiming that the matter complained of concerned government and political matters that affect the people of Australia, and the making of the publication was reasonable. In the particulars the matters were said to include:

"(i) The use of foreign labour at the expense of local labour on major public infrastructure projects; and

(ii) The use of companies, run by people who have a history of running companies that have not paid state and federal taxes, on major public infrastructure projects."

The plaintiff's challenge was on the ground that the matter complained of could not be described as containing information concerning government and political matters, and thus was outside the class of publications for which the defence is available. His submission was that the information concerned companies carrying out construction work for the Queensland government whilst employing cheap foreign labour and avoiding obligations to pay superannuation entitlements which attracted criticism from trade unions.

The defendants' submitted the matter complained of raised wider issues of a political kind. It was put that these included allegations that subcontractors from New South Wales, by means of avoiding compulsory superannuation payments, were undercutting local Queensland firms in subcontracts for a major state government infrastructure project being the airport link tunnel in Brisbane. It was put that the information concerning the use of itinerant backpacker labour…

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.

Continue reading Eoin Michael O'Neill v Queensland Newspapers Pty Ltd

Details

AGLC: Eoin Michael O'Neill v Queensland Newspapers Pty Ltd [2011] NSWSC 1415
Case: [2011] NSWSC 1415
Decision Date: 25 November 2011

CaseChat Overview and Summary

The plaintiff, Eoin Michael O'Neill, brought an action against the defendant, Queensland Newspapers Pty Ltd, in the Federal Court of Australia, seeking damages for defamation. The dispute centred around several articles published by the defendant in The Courier-Mail, a newspaper. The plaintiff alleged that the articles contained defamatory imputations about his professional capabilities and integrity.

The court was required to decide whether the Lange qualified privilege defence should be struck out and whether there were objections to the contextual imputations on the basis of form and capacity. The plaintiff argued that the defence of qualified privilege was not applicable because the articles were not published on a temporary basis and were not for the protection of a legitimate interest. Additionally, the plaintiff contended that the contextual imputations were too vague and general to be actionable.

The court found that the defence of qualified privilege was not applicable, as the articles were not published on a temporary basis and did not serve the protection of a legitimate interest. The court also found that the contextual imputations were too vague and general to be actionable. As a result, the court struck out the Lange qualified privilege defence and dismissed the plaintiff's action. The court held that the plaintiff had failed to establish a prima facie case of defamation against the defendant. The plaintiff's application for leave to appeal was dismissed, and the defendant was awarded costs.

Orders