Griffith v John Fairfax Publications Pty Ltd

Case [2004] NSWCA 300

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Griffith v John Fairfax Publications [2004]  NSWCA 300

FILE NUMBER(S):
40188/04

HEARING DATE(S):               23 August 2004

JUDGMENT DATE: 20/10/2004

PARTIES:
Jeremy Norman Griffith
Foundation for Humanity's Adulthood
Timothy John Macartney-Snape
The Persons Named in Schedule "A" to the Notice of Appeal with Appointment
John Fairfax Publications Pty Ltd
David Millikan
William Anthony McClelland t/as "Cultaware"

JUDGMENT OF:       Sheller JA Tobias JA Young CJ in Eq   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          SC 20301/01

LOWER COURT JUDICIAL OFFICER:     Levine J

COUNSEL:
A: K P Smark
1R & RS: R Lancaster / N Owens
R3: P Menadue

SOLICITORS:
A: Schweizer Kobras, Sydney
1R & 2R: Freehills, Sydney
3R: William Anthony McClelland

CATCHWORDS:
DEFAMATION - Imputations - Conveyance of - Whether reasonably capable of being conveyed - Whether matter ought to have gone to jury - s7A(1) Defamation Act 1974

LEGISLATION CITED:
Defamation Act 1974

DECISION:
(a) Appeal allowed in part
(b) Vary Order 1 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputation 6(i) and by adding thereto a reference to imputations 12(d), 13(b) and 14(b)
(c) Vary Order 2 made by Levine J on 19 February 2004 by adding thereto a reference to imputation 6(i)
(d) Vary Order 3 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputations 12(d), 13(b) and 14(b)
(e) Order that paragraph 15 of the Amended Statement of Claim be struck out but that leave be granted to the appellants to replead the allegation of republication of part of the first matter complained of by its inclusion within the second matter complained of by filing a further amended statement of claim within 21 days of the date of those orders
(f) Order that the appellants pay the first and second respondents' costs of the republication issue including the costs of the Notice of Contention
(g) Order that the first and second respondents pay the costs of the appeal with respect to the first matter complained of
(h) Order that the third respondent pay the costs of the appeal with respect to the second matter complained of but to have, if qualified, a certificate under the Suitor's Fund Act, 1951

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40188/04
SC 20301/01

SHELLER JA
TOBIAS JA
YOUNG CJ in Eq

Wednesday 20 October 2004

JEREMY NORMAN GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS

Judgment

  1. SHELLER JA: I agree with Tobias JA.

  2. TOBIAS JA:  By an Amended Statement of Claim (ASC) filed on 26 July 2002, the appellants sue the first and second respondents in respect of the publication in the "Sydney Morning Herald" on 22 April 1995 of an article under the heading "Profit of the Posh" (the first matter complained of).  The second appellant (FHA) is alleged in the ASC to be a company limited by guarantee and, according to the…

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Details
AGLC
Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
Case
[2004] NSWCA 300
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from orders made by Levine J in a defamation proceeding. The appellants were the plaintiffs and the respondents were the defendants. The dispute revolved around whether certain imputations conveyed by publications were reasonably capable of being conveyed, and consequently, whether the matter ought to have gone to a jury under s 7A(1) of the Defamation Act 1974.

The primary legal issue before the court was the proper construction of the defamatory imputations pleaded in the statement of claim and whether those imputations were capable of being conveyed by the published material. This involved a detailed examination of the language used in the publications and the context in which it appeared, to determine the ordinary and natural meaning that a reasonable reader would attribute to it. The court was required to assess whether the identified imputations were reasonably open to be found by a jury.

The court allowed the appeal in part, varying the orders of Levine J. The variations primarily concerned the inclusion and exclusion of specific imputations from the proceedings, reflecting an agreement between the parties on certain aspects. The court also struck out a paragraph of the amended statement of claim relating to republication but granted leave to replead this allegation. The orders addressed the costs of the appeal and specific issues, including the republication issue and the costs related to different matters complained of by the respective respondents.

Orders

Orders of the court

(a) Appeal allowed in part

(b) Vary Order 1 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputation 6(i) and by adding thereto a reference to imputations 12(d), 13(b) and 14(b)

(c) Vary Order 2 made by Levine J on 19 February 2004 by adding thereto a reference to imputation 6(i)

(d) Vary Order 3 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputations 12(d), 13(b) and 14(b)

(e) Order that paragraph 15 of the Amended Statement of Claim be struck out but that leave be granted to the appellants to replead the allegation of republication of part of the first matter complained of by its inclusion within the second matter complained of by filing a further amended statement of claim within 21 days of the date of those orders

(f) Order that the appellants pay the first and second respondents' costs of the republication issue including the costs of the Notice of Contention

(g) Order that the first and second respondents pay the costs of the appeal with respect to the first matter complained of

(h) Order that the third respondent pay the costs of the appeal with respect to the second matter complained of but to have, if qualified, a certificate under the Suitor's Fund Act, 1951

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

YOUNG CJ
The parties were also in agreement as to a further amendment to his Honour's orders relating to imputation 6(i) which is reflected in the orders proposed.Conclusion I would propose the following orders:(a) Appeal allowed in part;(b) Vary Order 1 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputation 6(i) and by adding thereto a reference to imputations 12(d), 13(b) and 14(b);(c) Vary Order 2 made by Levine J on 19 February 2004 by adding thereto a reference to imputation 6(i);(d) Vary Order 3 made by Levine J on 19 February 2004 by deleting therefrom the reference to imputations 12(d), 13(b) and 14(b);(e) Order that paragraph 15 of the Amended Statement of Claim be struck out but that leave be granted to the appellants to replead the allegation of republication of part of the first matter complained of by its inclusion within the second matter complained of by filing a further amended statement of claim within 21 days of the date of those orders;(f) Order that the appellants pay the first and second respondents' costs of the republication issue including the costs of the Notice of Contention;(g) Order that the first and second respondents pay the costs of the appeal with respect to the first matter complained of;(h) Order that the third respondent pay the costs of the appeal with respect to the second matter complained of but to have, if qualified, a certificate under the Suitor's Fund Act, 1951. in Eq: I agree with Tobias JA.

Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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