Fawcett v John Fairfax Publications Pty Ltd - [2008] NSWSC 139

CITATION: Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139

HEARING DATE(S): 12 November 2007; 13 November 2007; 14 November 2007; 15 November 2007; 16 November 2007; 19 November 2007; 20 November 2007; 21 November 2007; 22 November 2007; 23 November 2007

JUDGMENT DATE :
27 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: Verdict for the defendants. The plaintiff to pay the costs of the proceedings.

CATCHWORDS: DEFAMATION – imputations found by jury to have been conveyed – defences of justification (truth and public interest), comment and contextual truth (NSW) – PUBLIC INTEREST – imputations relate to matters of public interest – conduct of plaintiff in pursuit of his profession – TRUTH – matters and circumstances that establish the substantial truth of the imputations – COMMENT – whether comment was based upon a proper foundation – interstate defences – defences of justification (truth and public benefit) and principles stated in Hore-Lacy – no evidence provided on relevant legislative provisions for interstate publications – whether Polly Peck or Hore-Lacy defence applies to interstate publications – verdict for the defendants

LEGISLATION CITED: Civil Law (Wrongs) Act 2002 (ACT)
Defamation Act 1889 (Qld)
Defamation Act 1957 (Tas)
Defamation Act 1974
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254
Australian Consolidated Press Ltd v Uren [1966] HCA 37; 117 CLR 185
Bellino v Australian Broadcasting Corporation [1995] HCA 34; 185 CLR 183
Calwell v Ipec Australia Ltd [1973] 1 NSWLR 550
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24
Green v Schneller [2000] NSWSC 548
John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133
London Artists Ltd v Littler; Grade Organisation Ltd v Littler [1969] 2 QB 375
Polly Peck (Holdings) plc v Trelford [1986] 1 QB 1000
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Robinson v Laws [2001] QCA 122
Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759

PARTIES: Jamie Fawcett (Plaintiff)
John Fairfax Publications Pty Ltd (First Defendant)
Annette Sharp (Second Defendant)

FILE NUMBER(S): SC 20100 of 2005

COUNSEL: B R McClintock SC/J McLeod (Plaintiff)
T D Blackburn SC/M Lynch (Defendants)

SOLICITORS: Simpsons (Plaintiff)
Freehills (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

27 February 2008

20100/05 Jamie Fawcett v John Fairfax Publications Pty Ltd & Anor
JUDGMENT

1 HER HONOUR : This is the second stage of proceedings in defamation, brought by the plaintiff, Jamie Fawcett, against two defendants: John Fairfax Publications Pty Ltd and Annette Sharp. John Fairfax Publications Pty Ltd (to which I will refer as “Fairfax”) is the publisher…

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: [2008] NSWSC 139
Decision Date: 27 February 2008

CaseChat Overview and Summary

In Fawcett v John Fairfax Publications Pty Ltd, the plaintiff, Mr Fawcett, sued the defendants, John Fairfax Publications Pty Ltd, for defamation. The defendants published articles that made imputations about Mr Fawcett's conduct in relation to his profession. The trial took place in the Supreme Court of New South Wales. The jury found that the imputations were conveyed by the articles and that the defendants had failed to establish their defences.

The legal issues before the court were whether the defendants had established the defences of justification, public interest, comment, and contextual truth. The court had to determine whether the imputations related to matters of public interest, whether the comment was based on a proper foundation, and whether the defences applied to interstate publications. The court had to consider whether the defendants had proved the substantial truth of the imputations and whether the comment was based on matters of public interest.

The court found that the imputations related to matters of public interest and that the defendants had failed to establish their defences. The court held that the defences of justification, public interest, comment, and contextual truth were not available to the defendants. The court found that the defendants had not proved the substantial truth of the imputations and that the comment was not based on matters of public interest. The court held that the Polly Peck or Hore-Lacy defence did not apply to interstate publications and that the defendants had not provided evidence on the relevant legislative provisions. The verdict was in favour of the defendants.

The court made no orders for costs. The plaintiff's appeal to the Court of Appeal was dismissed.

Orders