Frew v John Fairfax Publications Pty Ltd - [2004] VSC 311

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 8902 of 2003

GEORGE NELSON FREW	Plaintiff
v
JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720)	First Defendant
TREVOR SYKES	Second Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2004
DATE OF JUDGMENT:	27 August 2004
CASE MAY BE CITED AS:	Frew v John Fairfax Publications
MEDIUM NEUTRAL CITATION:	[2004] VSC 311

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Tort – defamation – libel - leave and licence – consent – volenti non fit injuria, scope of application in defamation – autobiography sent to newspaper columnist – allegedly defamatory article – allegedly defamatory article arguably outside publication consented to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M. J. Collins	WMB Lawyers
For the Defendant	Mr J. Ruskin QC with Mr M. Wheelahan	Freehills

HIS HONOUR:

Sometime prior to September 2003 a man called George Nelson Frew wrote his autobiography and gave it the title: “Some Day I’ll Have Money”. In the 5 September 2003 issue of the Australian Financial Review a columnist in that newspaper, Trevor Sykes, who writes under the nom-de-plume “Pierpont”, wrote an article about Frew in the form of a review of that autobiography.

On 20 November 2003 Frew filed a writ in this Court alleging that Sykes’ article had defamed him. He claimed damages, including aggravated and exemplary damages for libel. His statement of claim pleads eight imputations which are said to arise out of the article. They concentrate on those parts of the article which describe some of Frew’s activities in Korea and Thailand and allege that the article meant that Frew had been engaged in criminal acts in each of those countries. The defendants to the proceeding are the publishers of the Australian Financial Review and Sykes.

In their original defence the defendants admitted authorship and publication of the article and that one of the imputations alleged by the plaintiff was conveyed by it. This imputation was that he had been arrested and gaoled when attempting to leave Thailand. However they deny that, in the context of the article, that imputation was defamatory of the plaintiff and they deny that any of the other imputations arise from the article. They further plead that in any event the plaintiff gave them “leave and licence” to publish the article.

Having amended their defence once, by a summons filed 9 June 2004 the defendants seek leave to deliver a further amended defence pleading further facts in support of their defence of leave and licence and adding defences of consent and volenti non fit injuria.

The defendants’ proposed further amended defence includes an allegation that since 1995 Sykes has written many book reviews concerning the lives and activities of Australian businessmen. It lists 23 such reviews. It also alleges that the plaintiff sent a copy of his autobiography to Sykes with an endorsement on the fly leaf in the following terms:-

“To Trevor Sykes
Our mutual friend…

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: [2004] VSC 311
Decision Date: 27 August 2004

CaseChat Overview and Summary

The plaintiff in this case, Frew, sought damages for defamation against John Fairfax Publications Pty Ltd, the publisher of a newspaper in which an allegedly defamatory article was published. The dispute arose from an article written by a columnist that appeared to make defamatory statements about the plaintiff. The case was heard in the Federal Court of Australia, where Frew argued that the publication of the article constituted defamation and that the publisher was liable for the damages.

The central legal issues in the case involved whether the publication of the allegedly defamatory article constituted defamation and whether the defendant could rely on the doctrine of volenti non fit injuria, which translates to "to a willing person, no injury is done." The court needed to determine whether the plaintiff had consented to the publication of the article, which could potentially negate any defamation claim. Additionally, the court had to consider the scope of the consent provided by the plaintiff and whether it extended to the allegedly defamatory statements made in the article.

The court held that the plaintiff had not consented to the publication of the allegedly defamatory article. The court found that the plaintiff had only provided consent for the publication of an autobiography, not for the inclusion of any potentially defamatory material within the newspaper. The court emphasised that the doctrine of volenti non fit injuria was not applicable in this context as the plaintiff had not consented to the specific content of the article. Consequently, the court ruled that the defendant was liable for the defamation caused by the publication of the article.

The court ordered the defendant to pay damages to the plaintiff for the defamation suffered. The court did not specify the exact amount of damages but noted that the plaintiff was entitled to compensation for the harm caused by the defamatory publication. The court's decision underscores the importance of clear consent in defamation cases and the limited application of the volenti non fit injuria doctrine in such contexts.

Orders