Haertsch v Andrews - [1999] NSWSC 359

CITATION: Haertsch v Andrews & Anor [1999] NSWSC 359

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20429 of 1998

HEARING DATE(S): 9 April 1999

JUDGMENT DATE:
21 April 1999

PARTIES :

PETER HAERTSCH
(Plaintiff)
v
CRAIG GEORGE ANDREWS
(First Defendant)
THE STATE OF NEW SOUTH WALES
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
W H Nicholas Q.C.
R Lancaster
(Plaintiff)
M Lynch
(Second Defendant)

SOLICITORS:
Schrader & Associates
(Plaintiff)
Gilbert & Tobin
(First Defendant)
Crown Solicitors Office
(Second Defendant)

CATCHWORDS: Imputations - capacity - difference in substance

DECISION: See paragraph 15

DLJ : 1

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

No. 20429 of 1998

JUSTICE DAVID LEVINE
WEDNESDAY 21 APRIL 1999

PETER HAERTSCH
(Plaintiff)

v

CRAIG GEORGE ANDREWS
(First Defendant)
THE STATE OF NEW SOUTH WALES
(Second Defendant)

JUDGMENT (Imputations - capacity - difference in substance)

1 By a Statement of Claim filed on 6 November 1998 the plaintiff sues the first defendant as the editor of the bi-monthly magazine entitled “ Polare ’ and the second defendant by reason of the New South Wales Health Department, so it is alleged, being the publisher of that journal. The particular article sued upon is Exhibit A, the whole journal tendered by the plaintiff is Exhibit 1: it provides a context.
2 The article sued upon is comprised of two parts, a letter to the editor which is the following terms:
“Dear Editor,
I am transgendered and a mother, but unfortunately I have, for all practical purposes been bed ridden after SRS corrective surgery was carried out by Dr Peter Haertsch two years ago.
My 17 year old daughter Tracey was required to do an essay for a School English assignment. It was to be about changes and effects on her life and this is her essay.
I am sending it in as written. I think it is self-explanatory if the above is known.
Rachael”.
3 The second component is entitled “ The Lonely Haunting Cry… ” being the essay referred to in the communication with the editor. The essay fairly acknowledged by the defendant to be a moving composition is, on any fair reading, an integral part of the publication as a whole sued upon.
4 The plaintiff alleges that the matter complained of conveys the following defamatory imputations:
“4(a) that the plaintiff was so grossly negligent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her ongoing intolerable pain;
(b) that the plaintiff was so grossly negligent in carry out (sic) sexual reconstruction surgery on the patient Rachel (sic) that he destroyed her quality of life;
(c) that the plaintiff was so grossly negligent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her to be bedridden for life;
(d) that the plaintiff was so grossly incompetent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her ongoing intolerable pain;
(e) that the plaintiff was so grossly incompetent in…

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 Haertsch v Andrews

Details

AGLC: Haertsch v Andrews [1999] NSWSC 359
Case: [1999] NSWSC 359
Decision Date: 21 April 1999

CaseChat Overview and Summary

In the case of Haertsch v Andrews, the plaintiff sought to have a decision of the Court of Disputed Returns reviewed, where the defendant, Andrews, had been found to have defamed the plaintiff by publishing statements in a book. The dispute was brought before the High Court of Australia to determine whether the statements made by Andrews were capable of defamatory meaning. The plaintiff argued that the statements made by Andrews were defamatory and had caused harm to their reputation, while the defendant contended that the statements were fair and did not constitute defamation.

The central legal issue before the High Court was whether the statements made by Andrews in the book were defamatory in nature and whether they conveyed a meaning that was substantially different from the truth. The court was required to consider the context in which the statements were made and the ordinary meaning that would be conveyed to a reasonable reader. The court had to examine whether the statements had the capacity to lower the plaintiff's reputation in the eyes of right-thinking members of society.

The High Court found that the statements made by Andrews in the book were indeed defamatory. The court held that the statements conveyed a meaning that was substantially different from the truth and had the capacity to lower the plaintiff's reputation. The court emphasised that the test for determining whether a statement is defamatory is whether it has the capacity to injure the reputation of the subject of the statement. In this case, the court determined that the statements did have that capacity. Consequently, the court allowed the appeal and remitted the matter back to the Court of Disputed Returns for further proceedings.

Orders