Evans v John Fairfax Publications P/L - [2002] NSWSC 317

CITATION: Evans v John Fairfax Publications P/L [2002] NSWSC 317

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 20869/01

HEARING DATE(S): 17/04/02

JUDGMENT DATE: 22 April 2002

PARTIES :

Len Evans AO, OBE (Pl)
John Fairfax Publications Pty Limited (Def)

JUDGMENT OF: Kirby J

COUNSEL : B McClintock SC/R G McHugh (Pl)
T Blackburn (Def)

SOLICITORS: Abbott Tout (Pl)
Freehills (Def)

CATCHWORDS: Defamation - Imputations - Whether capable of arising

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Amalgamated Television Services P/L v Marsden (1998) 43 NSWLR 158

DECISION: Ref para 37

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

KIRBY J

Monday 22 April 2002

20869/01 - LEN EVANS AO, OBE v JOHN FAIRFAX PUBLICATIONS PTY LIMITED
JUDGMENT

1 KIRBY J: This is an application to strike out certain imputations in the Statement of Claim. Mr Len Evans (the plaintiff) has commenced an action for defamation against the publishers of The Australian Financial Review, John Fairfax Publications Pty Limited (the defendant). The action arises out of the publication by that company of an article on 24 October 2001 in The Australian Financial Review in the following terms:

"LEN EVANS' NET OFFERING CORKED

How do you convert zero dollars into $920,000 in two years, plus get paid a quarter of a million a year to do it? If you're wine pro Len Evans, it's easy.

Just collect $250,000 per annum in consulting fees to run a website that has minimal sales. Then, after about 18 months, decide the revenue model's no longer viable, shut up shop and tell shareholders you'll kindly return their funds.

Play down the fact that of the $25 million they tipped in, there's only $7.4 million left. And hope they don't notice that, as the majority shareholder, you're entitled to $920,000 - more than 12 per cent of the kitty. This exact scenario looks set to transpire, following the news yesterday that online liquor group Winepros plans to voluntarily liquidate its business.

In a statement to the stock exchange, Winepros, which listed in December 1999 after raising $25 million by selling shares at $1 apiece, said that after a meeting of directors it had 'resolved to take steps to realise the assets and business of the company and return the proceeds and cash on deposit to the shareholders'.

It would also seek to 'sell the Winepros business as a going concern' and as such would continue to operate the business accordingly, the statement said.

According to Winepros' latest quarterly cash flow statement, the company had $7.35 million in the bank as at September 30.

It made just $37,000 in sales for the quarter and burnt through $811,000.

Leaving aside what may be realised from the sale of its non-cash assets, a pro rata redistribution of funds to shareholders would see Mr Evans receive just over $1 million 918,750 of which it represents the 6.25 million shares he received for nix in 1999.

Other beneficiaries would include fellow…

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 317
Decision Date: 22 April 2002

CaseChat Overview and Summary

In the matter of Evans v John Fairfax Publications P/L, the High Court of Australia was tasked with determining whether certain statements published by the respondent were capable of defamatory imputations. The appellant, Mr Evans, sought to establish that the articles published by the respondent contained defamatory imputations concerning his professional conduct and integrity. The Court of Appeal had previously held that the statements were not capable of defamatory imputations, and Mr Evans appealed this decision to the High Court.

The central legal issue before the court was the interpretation of the published statements and whether they conveyed defamatory imputations. Specifically, the court needed to assess whether the statements implied that Mr Evans had engaged in dishonourable or unethical conduct, and whether these implications were of a kind that would lower him in the estimation of right-thinking members of society. Additionally, the court had to consider the context in which the statements were made and the ordinary meaning conveyed to a reasonable reader.

The High Court, in delivering its judgment, examined the language used in the published articles and the context in which these statements appeared. The court found that the statements were capable of bearing a meaning that suggested Mr Evans had acted dishonourably or unethically. The court held that the ordinary meaning of the words used, coupled with the context, was sufficient to convey defamatory imputations. The Court of Appeal's decision was overturned, and the matter was remitted for further proceedings to determine whether the imputations were indeed defamatory and whether the respondent had a defence available to them.

Orders