Fairfax Media Publications Pty Ltd v King - [2015] NSWCA 172

Court of Appeal
Supreme Court

New South Wales

Case Name:	Fairfax Media Publications Pty Ltd v King
Medium Neutral Citation:	[2015] NSWCA 172
Hearing Date(s):	21 May 2015
Date of Orders:	24 June 2015
Decision Date:	24 June 2015
Before:	McColl JA at [1]; Emmett JA at [2]; Leeming JA at [45]
Decision:	1 Application for leave to appeal be dismissed. 2 The Applicants file and serve, within 7 days, any submissions, of no more than 3 pages, that they may wish to make concerning the costs of the draft notice of contention filed by the Respondent on 16 February 2015. 3 The Respondent file and serve any response, of no more than 3 pages, within 14 days. 4 The Applicants file and serve any reply, of no more than 1 page, within 21 days. 5 Subject to any subsequent order in consequence of any submissions so made: (a) The Applicants pay the Respondent’s costs of the application for leave to appeal, excluding the costs of the draft notice of contention filed by the Respondent on 16 February 2015. (b) The Respondent pay the Applicants’ costs of that notice of contention.
Catchwords:	DEFAMATION – defences – contextual imputations – whether primary judge erred in holding that certain contextual imputations were impermissibly imprecise – whether primary judge misapplied principles stated in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137
Legislation Cited:	Defamation Act 2005 (NSW), ss 25, 26 Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 14.31, 14.33
Cases Cited:	Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 Nationwide News Pty Ltd v Warton [2002] NSWCA 377 State of New South Wales v Deren [1999] NSWCA 22; Aust Torts Reports ¶81-502 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; 134 CLR 1 Waller v Nationwide New Pty Ltd [2011] NSWSC 611
Category:	Principal judgment
Parties:	Fairfax Media Publications Pty Ltd (First Applicant) The Age Company Pty Ltd (Second Applicant) The Federal Capital Press of Australia Pty Ltd (Third Applicant) Wallace Macarthur King (Respondent)
Representation:	Counsel: Mr A Leopold SC with Ms L Barnett (Applicants) Mr R McHugh SC with Mr M Richardson (Respondent) Solicitors: Banki Haddock Fiora (Applicants) Atanaskovic Hartnell (Respondent)
File Number(s):	2014/287857
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Supreme Court of New South Wales
Jurisdiction:	Common Law Division
Citation:	King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244
Date of Decision:	8 September 2014
Before:	McCallum J
File Number(s):	2013/348650

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the…

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: [2015] NSWCA 172
Decision Date: 24 June 2015

CaseChat Overview and Summary

Fairfax Media Publications Pty Ltd (the applicant) sought leave to appeal a decision of the primary judge concerning imputations of fact arising from certain publications. The respondent, Mr King, alleged that these publications were defamatory. The dispute centred on whether the primary judge had correctly identified and assessed the contextual imputations of fact that were conveyed by the publications.

The Court of Appeal was required to determine whether the primary judge erred in holding that certain contextual imputations were impermissibly imprecise. This involved considering the application of the principles established in *Drummoyne Municipal Council v Australian Broadcasting Corporation* (1990) 21 NSWLR 135, specifically at page 137, concerning the identification and assessment of contextual imputations in defamation proceedings.

The Court of Appeal found that the primary judge had not erred in their assessment of the contextual imputations. The reasoning applied was that the primary judge had correctly applied the principles from *Drummoyne*, which require that contextual imputations be sufficiently precise to be capable of being understood by ordinary reasonable readers. The court concluded that the primary judge's findings on this point were sound.

The application for leave to appeal was dismissed. The parties were ordered to file and serve submissions concerning the costs of a draft notice of contention filed by the respondent, with subsequent orders for costs to be made subject to those submissions. Generally, the applicants were ordered to pay the respondent's costs of the application for leave to appeal, excluding the costs of the draft notice of contention, for which the respondent was ordered to pay the applicants' costs.

Orders

Orders of the court

1 Application for leave to appeal be dismissed.

2 The Applicants file and serve, within 7 days, any submissions, of no more than 3 pages, that they may wish to make concerning the costs of the draft notice of contention filed by the Respondent on 16 February 2015.

3 The Respondent file and serve any response, of no more than 3 pages, within 14 days.

4 The Applicants file and serve any reply, of no more than 1 page, within 21 days.

5 Subject to any subsequent order in consequence of any submissions so made:

(a) The Applicants pay the Respondent’s costs of the application for leave to appeal, excluding the costs of the draft notice of contention filed by the Respondent on 16 February 2015.

(b) The Respondent pay the Applicants’ costs of that notice of contention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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