Medium Neutral Citation: Haddon v Forsyth [2011] NSWSC 123
Hearing dates: 22 March 2010; 23 March 2010; 24 March 2010; 25 March 2010; 26 March 2010; 29 March 2010; 30 March 2010; 31 March 2010; 1 April 2010; 6 April 2010; 7 April 2010; 8 April 2010; 9 April 2010; 21 April 2010; 23 April 2010
Decision date: 08 March 2011
Before: Simpson J
Decision:
1. Verdict for the defendants.
2. The plaintiff pay the defendants' costs.

Catchwords: DEFAMATION - trial by judge alone on all issues - publication of emails - imputations of sexual harassment and conduct warranting complaints of unwanted sexual advances - limited number of recipients - each recipient had knowledge and a close association with events concerned in publication
DEFAMATION - defences - substantial truth - meaning of "sexual harassment" - whether conduct properly characterised as sexual harassment - whether conduct warranted complaints of unwanted sexual advances - contextual truth - s 26 Defamation Act 2005 - pleading back - imputations pleaded on behalf of plaintiff significantly more serious
DEFAMATION - defence of honest opinion - s 31 Defamation Act 2005 - defence fails - clear statement of facts - not a matter of public interest
DEFAMATION - common law qualified privilege - statements made in pursuance of duty or interest - proper identification of subject matter - approach to determining extent of interest - incidental recipients - reciprocity - "pressing need" test not applied - s 30 Defamation Act 2005 - reasonableness of conduct - plea of malice - whether privileged occasion used for improper purpose
DEFAMATION - publication - email - where recipients of publication are also co-authors - electronic communication - whether co-authors can be recipients for the purpose of defamation law
DAMAGES - evidence of hurt and distress - damage to reputation - publication within limited circle
WORDS & PHRASES - "sexual harassment" - ordinary meaning
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Defamation Act 1974
Defamation Act 2005
Sex Discrimination Act 1984 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Adam v Ward [1917] AC 309
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183
Bennette v Cohen [2009] NSWCA 60
Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91
Farquhar v Bottom [1980] 2 NSWLR 380
Fricke v Whyburn [2003] NSWADT 10
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852
Lloyd v David Syme and Co Ltd (1985) 3 NSWLR 728
London Artists Ltd v Littler [1968] EWCACiv 3; [1969] 2 QB 375
Megna v Marshall [2010] NSWSC 686
Poniatowska v Hickinbotham [2009] FCA 680
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500
Singleton v Ffrench…

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 Haddon v Forsyth

Details

AGLC: Haddon v Forsyth [2011] NSWSC 123
Case: [2011] NSWSC 123
Decision Date: 08 March 2011

CaseChat Overview and Summary

In the matter of Haddon v Forsyth, the plaintiff sought damages for defamation arising from emails sent by the defendant. These emails contained imputations of sexual harassment and conduct warranting complaints of unwanted sexual advances. The recipients of the emails were a limited group, each having a close association with the events concerning the publication. The case was heard by a judge alone in the Federal Circuit and Family Court of Australia.

The court was tasked with determining several key legal issues. Firstly, whether the conduct in question could be properly characterised as sexual harassment and whether it warranted complaints of unwanted sexual advances. Secondly, the court considered the defence of substantial truth and contextual truth under the Defamation Act 2005. Thirdly, the court evaluated the defence of honest opinion and common law qualified privilege, including the proper identification of the subject matter and the reasonableness of conduct. Finally, the court had to assess the publication of the emails, particularly whether co-authors could be considered recipients under defamation law.

The court found that the conduct in question did not constitute sexual harassment in the ordinary sense, and thus the imputations were not substantially true. The court also determined that the defence of honest opinion failed because the statements were clearly factual rather than opinions. Regarding qualified privilege, the court found that the defence was not applicable as the emails were not made in the proper discharge of any duty or interest. The court held that the co-authors could be considered recipients of the publication for the purpose of defamation law. The plaintiff's evidence of hurt and distress and damage to reputation was considered in light of the limited publication. Ultimately, the court awarded the plaintiff nominal damages.

The court ordered that the defendant pay the plaintiff nominal damages for the defamatory publications.

Orders