Evatt v Nationwide News Pty Ltd - [1999] NSWCA 99

CITATION: Evatt v Nationwide News Pty Ltd [1999] NSWCA 99

FILE NUMBER(S): CA 40175/97

HEARING DATE(S): 3 March 1999

JUDGMENT DATE:
19 April 1999

PARTIES :

Lyndal Evatt
Nationwide News Pty Ltd (t/as Cumberland Newspapers)

JUDGMENT OF: Sheller JA at 1; Powell JA at 2; Giles JA at 3

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : CLD 1049/93

LOWER COURT JUDICIAL OFFICER: Newman J

COUNSEL: Appellant - J R Young
Respondent - T S Hale & M S C Champion

SOLICITORS: Appellant - Charters, Auburn
Respondent - Cropper Parkhill, Sydney

CATCHWORDS: DEFAMATION - statutory qualified privilege - whether conduct in publishing defamatory material reasonable in the circumstances - imputation found by jury not intended - believed in different meaning - failure to show conduct reasonable in relation to unintended imputation - defence not made out.

DECISION: (1) Appeal allowed; (2) Set aside the judgment for the defendant and the order for costs; (3) Judgment for the plaintiff for $20,000; (4) Order the respondent to pay the appellant's costs of the proceedings at first instance and of the appeal.

17

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40175/97
CL 10493/93

SHELLER JA
POWELL JA
GILES JA
Monday 19 April 1999

LYNDAL EVATT
v
NATIONWIDE NEWS PTY LTD
(t/as CUMBERLAND NEWSPAPERS)
JUDGMENT

1 SHELLER JA: I agree with Giles JA.
2 POWELL JA: I agree with Giles JA.
3 GILES JA: The respondent Nationwide News Pty Ltd published the Northern District Times, circulating principally in the northern suburbs of Sydney. The edition of 27 January 1993 contained an article written by Mrs Leanne Younes, a journalist employed by the respondent, concerning a meeting of residents of a public housing estate at Ryde known as Ivanhoe Place. The meeting had been called by an association known as the Ivanhoe Place Residents Association Inc, of which the appellant Ms Lyndal Evatt was then the secretary. It was chaired by Mr Wayne Tilly, an employee of the Public Tenants Council, a body established to represent the interests of persons occupying public housing in the State.
4 The article included -
“According to Mr Tilly, the meeting had been called to present a no-confidence motion in the IPRA Inc secretary Lyndal Evatt.

Ms Evatt was asked to explain several of her actions, including the failure to produce minutes of previous committee meetings and failure to send out letters as requested by the committee.
A dispute also arose over Ms Evatt’s wish to tape record the meeting’s proceedings.
As the meeting further ‘degenerated’ police urged the gathering to concentrate on the agenda.”

5 The appellant brought proceedings against the respondent, alleging that the article was defamatory of her. In her statement of claim she pleaded two defamatory imputations -
(a) that she was derelict in her duties as secretary of the Ivanhoe Place Residents Association; and
(b) that she caused the meeting of the Ivanhoe Place Residents Association to degenerate.
6 In its defence the respondent…

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: [1999] NSWCA 99
Decision Date: 19 April 1999

CaseChat Overview and Summary

The appeal in *Evatt v Nationwide News Pty Ltd* concerned a defamation action brought by the appellant against the respondent. The central dispute revolved around the publication of defamatory material by the respondent, and whether the respondent could successfully rely on the defence of statutory qualified privilege. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the respondent's conduct in publishing the defamatory material was reasonable in the circumstances, as required by the defence of statutory qualified privilege. Specifically, the court had to consider whether the respondent had established that its conduct was reasonable in relation to the imputation of the defamatory material as found by the jury, even if that imputation was not intended by the publisher.

The court reasoned that while the jury had found that the imputation of the defamatory material was not intended by the respondent, and that the respondent had believed in a different meaning, this did not automatically establish the defence of qualified privilege. The defence requires the publisher's conduct to be reasonable in relation to the imputation that was *in fact* conveyed. The court found that the respondent had failed to demonstrate that its conduct was reasonable in relation to the imputation that the jury had found to be defamatory, and therefore the defence of statutory qualified privilege was not made out.

Consequently, the appeal was allowed. The judgment for the defendant and the order for costs at first instance were set aside, and judgment was entered for the plaintiff for $20,000. The respondent was ordered to pay the appellant's costs of both the proceedings at first instance and the appeal.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the judgment for the defendant and the order for costs; (3) Judgment for the plaintiff for $20,000; (4) Order the respondent to pay the appellant's costs of the proceedings at first instance and of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Evatt v Nationwide News Pty Ltd [1999] NSWCA 99
FILE NUMBER(S):	CA 40175/97
HEARING DATE(S):	3 March 1999
JUDGMENT DATE:	19 April 1999
PARTIES :	Lyndal Evatt Nationwide News Pty Ltd (t/as Cumberland Newspapers)
JUDGMENT OF:	Sheller JA at 1; Powell JA at 2; Giles JA at 3

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 1049/93
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	Appellant - J R Young Respondent - T S Hale & M S C Champion
SOLICITORS:	Appellant - Charters, Auburn Respondent - Cropper Parkhill, Sydney
CATCHWORDS:	DEFAMATION - statutory qualified privilege - whether conduct in publishing defamatory material reasonable in the circumstances - imputation found by jury not intended - believed in different meaning - failure to show conduct reasonable in relation to unintended imputation - defence not made out.
DECISION:	(1) Appeal allowed; (2) Set aside the judgment for the defendant and the order for costs; (3) Judgment for the plaintiff for $20,000; (4) Order the respondent to pay the appellant's costs of the proceedings at first instance and of the appeal.