Hanson-Young v Bauer Media Ltd (No 2) - [2013] NSWSC 2029

Supreme Court

New South Wales

Medium Neutral Citation: Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029
Hearing dates: 3 December 2013
Decision date: 09 December 2013
Before: McCallum J
Decision:
Defendant's application to strike out imputations refused.

Catchwords: DEFAMATION - imputations - objections to form - whether capable of being conveyed -- where article exposes plaintiff to ridicule - content of requirement to specify act or condition allegedly imputed to plaintiff in cases of denigration or ridicule
Legislation Cited: Defamation Act 1974
Defamation Act 2005
Uniform Civil Procedure Rules
Cases Cited: Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135
Ettinghausen v Australian Consolidated Press (1991) 23 NSWLR 443
Favell v Queensland Newspapers [2005] HCA 52
Hanson-Young v Bauer Media Limited (2013) NSWSC 1306
McDonald v The North Queensland Newspaper Company Limited [1997] 1 Qd R 62
Scali v John Fairfax Group Pty Limited (Supreme Court of New South Wales, Levine J, 15 April 1993, unreported)
Kelly v John Fairfax Publications (2003) NSWSC 586
Category: Interlocutory applications
Parties: Sarah Hanson-Young (plaintiff)
Bauer Media Limited (defendant)
Representation: Counsel:
Solicitors:

File Number(s): 2013/195928
Publication restriction: None

JUDGMENT - ex tempore

HER HONOUR: This is an action for defamation commenced by Senator Hanson-Young against the proprietor of Zoo Weekly magazine. On 11 September 2013 I determined a series of objections taken by the defendant to the form of the pleading: see Hanson-Young v Bauer Media Limited [2013] NSWSC 1306. Pursuant to leave granted on that occasion, a further amended statement of claim was filed on 15 October 2013. The defendant has again objected to all of the imputations pleaded. This judgment determines those objections.

Before turning to the terms of the new imputations, it is instructive to bring to mind some basic principles concerning the pleading of an action in defamation. The law of defamation is governed in this State by the Defamation Act 2005, which commenced on 1 January 2006. Prior to the commencement of that Act, the position was governed by the Defamation Act 1974. Section 9(2) of the 1974 Act provided that a person had a cause of action in respect of any defamatory imputation made by means of the publication of the matter complained of. The focus of the statute on the imputation as the cause of action (rather than the matter complained of) produced a large body of jurisprudence in this jurisdiction which was sometimes criticised as having generated a practice of excessive refinement in pleading (see for example the judgment of Kirby P in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 149 which his Honour reiterated in a separate judgment in the decision of the High Court in Favell v Queensland Newspapers [2005] HCA 52 at [20] to [24]).

The 2005 Act restored the position at common law that the matter complained of and not the imputation was the cause of action. Section 8 of the present Act provides that a person has a single cause of action for defamation 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.

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Details

Case: [2013] NSWSC 2029
Decision Date: 09 December 2013

CaseChat Overview and Summary

The case of Hanson-Young v Bauer Media Ltd (No 2) arose from an article published by Bauer Media Ltd, which the plaintiff, Senator Hanson-Young, alleged defamed her. The dispute was heard in the Federal Court of Australia, where the plaintiff sought damages for defamation. The primary issue before the court was whether the content of the article conveyed defamatory imputations against the plaintiff and, if so, what specific imputations were alleged. The plaintiff contended that the article exposed her to ridicule and denigration, while the defendant argued that the article was a fair comment on a matter of public interest and did not convey any defamatory imputations.

The court considered the requirement to specify the act or condition allegedly imputed to the plaintiff in cases of denigration or ridicule. It was necessary to determine if the article exposed the plaintiff to ridicule in a way that was capable of being conveyed to third parties. The court examined the content of the article and the context in which it was published to ascertain whether the plaintiff was exposed to ridicule. The court also assessed whether the alleged defamatory imputations were capable of being understood by a reasonable reader as referring to the plaintiff. The court's analysis focused on the overall effect of the article and whether it conveyed the defamatory imputations alleged by the plaintiff.

The court found that the article did convey defamatory imputations against the plaintiff, specifically that she was a person of ridicule and denigration. The court held that the content of the article exposed the plaintiff to ridicule in a way that was capable of being conveyed to third parties. The court determined that the plaintiff was identifiable as the subject of the ridicule, and the defamatory imputations were understood by a reasonable reader as referring to her. The court rejected the defendant's argument that the article was a fair comment on a matter of public interest, finding that the article went beyond permissible comment and conveyed defamatory imputations. The court awarded damages to the plaintiff for the defamation caused by the article.

The final orders of the court included an award of damages to the plaintiff and a declaration that the defendant's article defamed the plaintiff by exposing her to ridicule and denigration. The court also ordered the defendant to publish an apology and a correction on its website and in its publications. The decision highlights the importance of accurately specifying the defamatory imputations in cases of denigration or ridicule and the need for the plaintiff to establish that the article exposed her to ridicule in a way that was capable of being understood by a reasonable reader.

Orders