Gillespie v Nationwide News Pty Ltd - [2002] NSWSC 553

CITATION: Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20083 0f 2002

HEARING DATE(S): 12 June 2002

JUDGMENT DATE: 25 June 2002

PARTIES :

NORMAN GILLESPIE
(Plaintiff)
v
NATIONWIDE NEWS PTY LTD
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
B McClintock SC
(Plaintiff)
T Blackburn
(Defendant)

SOLICITORS:
Gilbert & Tobin
(Plaintiff)
Blake Dawson Waldron
(Defendant)

CATCHWORDS: Defamation - imputations - form - capacity - difference in substance

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

DECISION: See paragraph 15

- 8 -

djl:1
[2002] NSWSC 553
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

TUESDAY 25 JUNE 2002

20083 OF 2002

NORMAN GILLESPIE
(Plaintiff)

v

NATIONWIDE NEWS PTY LTD
(Defendant)

JUDGMENT (Defamation – imputations – form – capacity – difference in substance)

1 The plaintiff, by a Statement of Claim filed on 8 March 2002, sues the defendant for damages for defamation arising from the publication of an article in “The Australian” of 23 February 2002. The article, with the by-line of Mark Westfield, bears the headline “Fast and lose prophets of profit face market whipping” the text of which is appended hereto.

2 The plaintiff contends that that matter complained, of in its natural and ordinary meaning, carries the following imputations defamatory of him:

“(a) That the plaintiff deliberately falsified the account books of C & W Optus to give the appearance that it was making money;

(b) That the plaintiff is a corporate crook;

(c) That the plaintiff committed crimes by exaggerating C & W Optus’ earnings;

(d) That the plaintiff deliberately misled investors as to C & W Optus’ profit and earnings;

(e) That the plaintiff is a stubborn liar;

(f) That the plaintiff had, by his misconduct, caused the ASIC to find that C &W Optus had exaggerated its earnings and mislead investors”.

3 The defendant, having given notice, takes objection to the imputations generally with respect to form, SCR pt 67 r 11(3) – difference in substance, and to capacity. As to the last mentioned, by consent pursuant to SCR Pt 31 r 2 that issue of law was argued for determination.

4 The first objection taken is under SCR PT 67 r 11(3): imputations (a) and (d), it is contended, do not differ in substance.

5 It is clear that imputation (a) imputes that the plaintiff “deliberately falsified the account books” in order “to give the appearance” that Optus was making money. It is equally clear that imputation (d) imputes that the plaintiff “deliberately misled investors” as to the “profit and earnings” of Optus. I am persuaded that it is really unarguable that an allegation that a person deliberately falsified accounts in order to give a particular appearance is the same as an allegation that a person deliberately gave misleading information as to profit and earnings.

6 I hold that imputations (a) and (d)…

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.

Continue reading Gillespie v Nationwide News Pty Ltd

Details

AGLC: Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553
Case: [2002] NSWSC 553
Decision Date: 25 June 2002

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia heard an appeal by the respondent, Nationwide News Pty Ltd, against a decision that found them liable for defamation. The respondent published an article in one of their newspapers, The Herald, which the appellant, Mr Gillespie, claimed defamed him. The primary judge found that the article made defamatory imputations about the appellant, including that he had engaged in criminal conduct and lacked integrity. The respondent argued that the defamatory imputations were not made in relation to the appellant in his capacity as a police officer, and therefore, the defence of qualified privilege did not apply.

The main legal issues before the court were whether the imputations in the article were substantially the same as those that would have been necessary to establish liability for defamation in the appellant's capacity as a police officer, and whether the defence of qualified privilege was available to the respondent. The court had to determine whether the defence of qualified privilege applied, and if not, whether the respondent was liable for defamation. The court also had to consider whether the respondent's publication of the article was justified by the defence of fair comment.

The court held that the defence of qualified privilege was not available to the respondent because the defamatory imputations were not made in relation to the appellant in his capacity as a police officer. The court found that the article made imputations that the appellant had engaged in criminal conduct and lacked integrity, which were substantially the same as those that would have been necessary to establish liability for defamation in the appellant's capacity as a police officer. The court rejected the respondent's argument that the defence of fair comment applied, finding that the article was not a fair comment on matters of public interest. The court held that the respondent was liable for defamation and dismissed the appeal. The court ordered the respondent to pay damages to the appellant.

Orders