Hayson v John Fairfax Publications Pty Ltd - [2007] NSWCA 376

NEW SOUTH WALES COURT OF APPEAL

CITATION: Hayson v. John Fairfax Publications Pty. Limited [2007] NSWCA 376

FILE NUMBER(S):
40527/07

HEARING DATE(S): 11 December 2007

EX TEMPORE DATE: 11 December 2007

PARTIES:
Edward Hayson - claimant
John Fairfax Publictions Pty. Limited - respondent

JUDGMENT OF: Hodgson JA Santow JA Tobias JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20300/06

LOWER COURT JUDICIAL OFFICER: Nicholas J

LOWER COURT DATE OF DECISION: 13 July 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 763

COUNSEL:
Mr. R. McHugh SC with Mr. M. Richardson for claimant
Mr. T. Blackburn SC with Mr. R. Glasson for opponent

SOLICITORS:
Johnson Winter & Slattery, Sydney for claimant
Freehills, Sydney for opponent

CATCHWORDS:
DEFAMATION - Pleadings - Contextual truth - Application to strike out pleadings dismissed - Application for leave to appeal - Whether sufficient doubt about primary judge's decision shown.

LEGISLATION CITED:

CASES CITED:
Armitage v Double Bay Newspapers Pty. Limited, Hunt J, 26 September 1991
Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

DECISION:
Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40527/07
SC 20300/06
HODGSON JA
SANTOW JA
TOBIAS JA
Tuesday 11 December 2007

HAYSON V. JOHN FAIRFAX PUBLICATIONS PTY. LIMITED

Judgment

HODGSON JA: On 13 July 2007, Nicholas J dismissed with costs a notice of motion brought by the claimant, who is the plaintiff in defamation proceedings. He sought an order that “paragraphs (a)(ii)-(vi) of the defence be struck out”. The claimant seeks leave to appeal from that order.
I will be proposing that leave be refused, and I will give reasons. In my opinion, the matters relied on do not raise sufficient doubt about the correctness of the result to justify leave being granted. In giving reasons I will be expressing some views about the substance of the matter. These views are intended merely to justify the refusal of leave and not to be final determinations of the matter, so that these views are not intended to rule out the matters being explored further in the event that there is an appeal from the result of the trial.
The proceedings arise out of an article in The Sydney Morning Herald newspaper of 10 to 11 June 2006, under the heading, “The Brothel Owner, League Stars and a Mystery Betting Plunge”. The imputations relied on are pleaded as follows in the amended statement of claim:
3. The matter complained of in its natural and ordinary meaning conveyed the following imputations each of which was defamatory of the Plaintiff:
(a)that the Plaintiff was in partnership with a major heroin dealer;
(b)that the Plaintiff had breached the criminal provisions of the Corporations Act by managing a company when an undischarged bankrupt;
(c)that the Plaintiff had committed a criminal offence by lodging documents…

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: [2007] NSWCA 376
Decision Date: 11 December 2007

CaseChat Overview and Summary

The applicants, Hayson and others, sought leave to appeal from a decision of a primary judge who had dismissed their application to strike out the defence of contextual truth pleaded by the respondent, John Fairfax Publications Pty Ltd, in defamation proceedings. The dispute concerned the publication of articles by John Fairfax Publications Pty Ltd which the applicants alleged were defamatory.

The central legal issue before the Court of Appeal was whether the primary judge erred in dismissing the application to strike out the defence of contextual truth. This required the Court to consider whether the defence, as pleaded, was so manifestly untenable or had no real prospect of success that it ought to be struck out. The Court also had to determine if the applicants had demonstrated sufficient doubt about the correctness of the primary judge's decision to warrant granting leave to appeal.

The Court of Appeal, comprising Hodgson JA, Santow JA, and Tobias JA, considered the principles governing applications to strike out pleadings and the defence of contextual truth. They found that the primary judge had correctly applied these principles and that the applicants had failed to demonstrate that the primary judge's decision was demonstrably wrong or that there was sufficient doubt about its correctness to justify granting leave to appeal.

Consequently, the application for leave to appeal was dismissed, and the applicants were ordered to pay the costs of the respondent.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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