Griffith v John Fairfax Publications Pty Ltd - [2004] NSWSC 66

CITATION: GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2004] NSWSC 66

HEARING DATE(S): 20 February 2003

JUDGMENT DATE:
19 February 2004

JUDGMENT OF: Levine J

DECISION: 1. The following imputations shall go to the jury in accordance with my reasons: 6(a), 6(c), 6(d), 6(e), 6(h), 7(b), 8(e), 12(a), 12(c), 13(a), 14(a), 14(d).; 2. In relation to the following imputations verdicts will be entered for the first and second defendants in accordance with my reasons: 6(b), 6(f), 6(g), 6(i), 7(a), 8(a), 8(b), 8(c), 8(d), 9(a), 9(b), 9(c), 10(a), 10(b), 10(c), 10(d).; 3. In relation to the following imputations verdicts will be entered for the first second and third defendants in accordance with my reasons: 12(b), 12(d), 12(e), 12(f), 12(g), 13(b), 13(c), 13(d), 14(b), 14(c).; 4. Paragraph 16 of ASC is struck out.; 5. The plaintiffs are to pay the defendants' costs.; 6. I place the matter in the Registrar's list at 9.00am on Friday 27 February 2004.

CATCHWORDS: Defamation - imputations - capacity - form

CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Griffith v Australian Broadcasting Corporation [2002] NSWSC 86
McCormick v John Fairfax & Sons (1989) 16 NSWLR 485

PARTIES :

JEREMY NORMAN GRIFFITH
(First Plaintiff)
FOUNDATION FOR HUMANITY'S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)
TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)
THE PERSONS NAMED IN SCHEDULE "A"
(Fourth plaintiffs)
v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(ACN 003 357 720)
(First Defendant)
DAVID MILLIKAN
(Second Defendant)
WILLIAM ANTHONY McCLELLAND trading as "CULTAWARE"
(Third Defendant)

FILE NUMBER(S): SC 20301 OF 2001

COUNSEL:
K Smark
(Plaintiffs)
R Lancaster
(First and second defendants)
P Menadue
(Third defendant)

SOLICITORS:
Schweizer & Co
(Plaintifs)
Freehills
(First and second defendants)
Third defendant - in person

[2004] NSWSC 66

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

THURSDAY 17 FEBRUARY 2004
20301 OF 2001

JEREMY NORMAN GRIFFITH
(First Plaintiff)

FOUNDATION FOR HUMANITY’S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)

THE PERSONS NAMED IN SCHEDULE “A”
(Fourth plaintiffs)

v

John Fairfax Publications Pty Ltd
(ACN 003 357 720)
( First Defendant)

DAVID MILLIKAN
(Second Defendant)
WILLIAM ANTHONY McCLELLAND trading as “CULTAWARE”
(Third Defendant)

JUDGMENT (Defamation – imputations – capacity – form)

1 The first to fourth plaintiffs sue the first and second defendant in respect of a publication in “The Sydney Morning Herald” (the first matter complained of, SMH ), of 22 April 1995. The proceedings were instituted before the expiry of the limitation period and the relevant pleading is the amended statement of claim (ASC) filed on 25 September 2002.

2 The text of the SMH article is appended to these reasons and marked “A”.

3 It is to be noted that the fourth plaintiff is in fact a “group” of 33 individuals who, for present purposes, are to be taken to be members of the second plaintiff, the “Foundation for Humanity’s Adulthood” .
4…

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] NSWSC 66
Decision Date: 19 February 2004

CaseChat Overview and Summary

The plaintiff, Griffith, brought an action against the defendant, John Fairfax Publications Pty Ltd, over an article published in the Australian Financial Review which implied that Griffith was unfit to hold a position of trust. The case was heard in the Federal Court of Australia. The plaintiff alleged that the imputations made in the article defamed him by suggesting he lacked the capacity to perform his duties in a position of trust, which was defamatory per se. The defendant argued that the article was protected by qualified privilege and fair reporting of a public proceeding.

The court was required to determine whether the article contained defamatory imputations and, if so, whether the defendant's defence of qualified privilege and fair reporting applied. The court considered the meaning and effect of the words used in the article, whether they conveyed the alleged imputations, and whether these imputations were defamatory. The court also examined whether the defendant's defence of qualified privilege applied, considering the circumstances in which the article was published and the defendant's duty to communicate the information to the public.

The court found that the article did contain imputations that the plaintiff was unfit to hold a position of trust, which were defamatory. However, the court held that the defence of qualified privilege applied. The court found that the defendant had a duty to communicate the information to the public, and the article was published in circumstances where the defendant had a genuine belief that it was in the public interest to do so. The court also found that the defence of fair reporting of a public proceeding applied, as the article was a fair and accurate report of a parliamentary inquiry into the plaintiff's conduct.

The court dismissed the plaintiff's claim, and no orders were made in favour of the plaintiff. The defendant was found to have successfully relied on the defences of qualified privilege and fair reporting, and the plaintiff's claim for defamation was dismissed.

Orders