FEDERAL COURT OF AUSTRALIA
Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152
ORDERS
NSD 827 of 2017 BETWEEN: DAMIEN GOODFELLOW
Applicant
AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED
First Respondent
EAMONN DUFF
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
29 SEPTEMBER 2017
THE COURT ORDERS THAT:
1.The interlocutory application filed by the respondents on 3 August 2017 be dismissed.
2.The respondents pay the applicant’s costs of and…
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Details
- Case
- [2017] FCA 1152
- Decision Date
CaseChat Overview and Summary
In the case of Goodfellow v Fairfax Media Publications Pty Ltd, the plaintiff, Goodfellow, sought to recover damages for defamation against the defendants, Fairfax Media Publications Pty Ltd and Mr. Duff. The plaintiff alleged that defamatory statements were published in an article by the defendants, which caused harm to his reputation. The defendants filed an interlocutory application to strike out certain defamatory imputations pleaded in the statement of claim, arguing that they were vague and ambiguous, and incapable of being conveyed by the article. The defendants also sought a separate trial on the question of the form of the defamatory imputations as pleaded.
The court was required to decide whether the particularised imputations were capable of being conveyed by the relevant article and whether they were "bad in form." The court considered the well-established principles that the question of whether a publication is capable of conveying a defamatory meaning is a question of law, to be determined from the perspective of the ordinary reasonable reader. The court also considered that the question whether the meaning or imputation was in fact conveyed to the ordinary reasonable reader is a question for the tribunal of fact at the trial. The court found that none of the objections raised by the defendants concerning the form of the particularised imputations had any merit.
The court dismissed the interlocutory application filed by the respondents and ordered that the respondents pay the applicant's costs of and associated with the interlocutory application. The court also ordered the parties to provide consent orders to the Associate to Justice Wigney for the further conduct of the proceeding within 14 days, failing which the proceeding would be listed for a further case management hearing on a date to be fixed. The court emphasised that none of what had been said concerning the clarity of the particularised imputations or the plaintiff's case concerning them should be construed as suggesting that the Court had formed any view or disposition concerning the plaintiff's case. The question whether the particularised imputations were in fact conveyed by the article and were defamatory of the plaintiff were plainly matters for trial.
The court was required to decide whether the particularised imputations were capable of being conveyed by the relevant article and whether they were "bad in form." The court considered the well-established principles that the question of whether a publication is capable of conveying a defamatory meaning is a question of law, to be determined from the perspective of the ordinary reasonable reader. The court also considered that the question whether the meaning or imputation was in fact conveyed to the ordinary reasonable reader is a question for the tribunal of fact at the trial. The court found that none of the objections raised by the defendants concerning the form of the particularised imputations had any merit.
The court dismissed the interlocutory application filed by the respondents and ordered that the respondents pay the applicant's costs of and associated with the interlocutory application. The court also ordered the parties to provide consent orders to the Associate to Justice Wigney for the further conduct of the proceeding within 14 days, failing which the proceeding would be listed for a further case management hearing on a date to be fixed. The court emphasised that none of what had been said concerning the clarity of the particularised imputations or the plaintiff's case concerning them should be construed as suggesting that the Court had formed any view or disposition concerning the plaintiff's case. The question whether the particularised imputations were in fact conveyed by the article and were defamatory of the plaintiff were plainly matters for trial.
Orders
Orders of the court
1. The interlocutory application filed by the respondents on 3 August 2017 be dismissed.
2. The respondents pay the applicant’s costs of and associated with the interlocutory application.
3. The parties provide consent orders to the Associate to Justice Wigney for the further conduct of the proceeding within 14 days, failing which the proceeding will be listed for a further case management hearing on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It follows that the use of the word “caused” in this particular does not make the particular ambiguous. Nor is it likely to lead to prejudice or embarrassment, either at the pleading stage or at trial.Conclusion in relation to form objections None of the objections raised by Fairfax and Mr Duff concerning the form of the particularised imputations have any merit. As has already been noted, if it subsequently turns out that Fairfax and Mr Duff have been prejudiced or embarrassed in any material way in the pleading of their defence, or the conduct of their defence at trial, by any vagueness or ambiguity in any of the particulars, the issue can then be revisited and dealt with. It should also be emphasised that none of what has been said concerning the clarity of the particularised imputations or Mr Goodfellow’s case concerning them should be construed as suggesting that the Court has formed any view or disposition concerning Mr Goodfellow’s case. The question whether the particularised imputations were in fact conveyed by the article and were defamatory of Mr Goodfellow are plainly matters for trial. THE CAPACITY OF THE ARTICLE TO GIVE RISE TO THE IMPUTATIONS Fairfax and Mr Duff contended that the imputations in particulars (a), (b), (e), (f) and (h) should be struck out because they are not capable of being conveyed by the relevant article. As such, they submitted that those particulars should be struck out pursuant to r 16.21(1)(e) because they fail “to disclose a reasonable cause of action … or other case appropriate to the nature of the pleading”.Relevant principles – capacity The applicable principles where a defendant or respondent in a defamation proceeding contends that the relevant publication did not have the capacity to convey the meanings or imputations alleged by the plaintiff or applicant are well-settled. The question whether a publication is capable of conveying a defamatory meaning is a question of law: Favell at [9]-[11]. The question is to be determined from the perspective of the ordinary reasonable reader (or listener or viewer, depending on the nature of the matter complained of). It should be borne in mind, in that context, that ordinary readers draw implications much more freely than lawyers, especially when they are derogatory: Favell at [11], referring to the judgment of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277. Where the tribunal of fact is a jury, the question is whether the challenged defamatory meanings or imputations “could reasonably be found by a jury” to have been conveyed: Favell at [14]-[15]; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [138]. The question whether the meaning or imputation was in fact conveyed to the ordinary reasonable reader (or listener or viewer) is a question for the tribunal of fact at the trial. Where the tribunal of fact is a jury, one can readily understand why it is important for the capacity issue to be considered and dealt with at an interlocutory stage before trial. The utility of that course is less obvious where the trial is conducted before a judge alone. As White J pointed out in Murphy (at [14]), where a defamation trial is to be heard by a judge alone, there is greater scope for issues such as the capacity of a publication to bear a defamatory meaning to be determined in the context of the trial itself, rather than in the context of a pre-trial interlocutory hearing.
Ratio Decidendi
Legal Principle Established
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