Hayson v John Fairfax Publications Pty Ltd - [2007] NSWSC 763

CITATION: Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763

HEARING DATE(S): 22.06.07, 09.07.07

JUDGMENT DATE :
13 July 2007

JUDGMENT OF: Nicholas J

DECISION: Para 52

CATCHWORDS: DEFAMATION – pleadings – whether contextual imputations capable of arising – specificity of contextual imputations – sufficiency of particulars in support of contextual imputations – whether contextual truth defences should be struck out under r 14.28 or summarily dismissed under the court’s inherent jurisdiction – Civil Procedure Rules 2005 s 56, s 57, s 60, s 64 and s 91(1) – UCPR r 14.28(1), r 14.31(2)(b), r 14.33(2), r 15.1(1), r 15.21(1)(c), r 15.23(2), r 15.25, r 28.2

LEGISLATION CITED: Defamation Act 2005 s 26
Civil Procedure Act 2005 s 56, s 57, s 60, s 64, s 91(1)
Uniform Civil Procedure Rules 2005 r 14.28(1)(a) and (b), r 14.31(2)(b), r 14.33(2)(a), (b) and (c), r 15.1(1), r 15.21(1)(c), r 15.23(2), r 15.25, r 28.2

CASES CITED: Agar v Hyde (2000) 201 CLR 552
Armitage v Double Bay Newspapers Pty Ltd [Unreported, NSWSC, 26 September 1991]
Australian Broadcasting Corp v Hodgkinson [2005] NSWCA 190
Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937
Douglas & Anor v John Fairfax & Sons Ltd & Anor (1983) 3 NSWLR 126
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657
Jackson & Ors v TCN Channel Nine Pty Ltd [Unreported, NSWSC, 17 October 1996]
Lewis v Daily Telegraph Ltd [1964] AC 234
Marsden v Amalgamated Television Services Pty Ltd [Unreported, NSWSC, 17 December 1996]
NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [Unreported, NSWSC, 14 July 1989]
Peter Kent Development Pty Ltd v The Australia and New Zealand Banking Group Ltd [Unreported, NSWSC, 6 May 1980]
Penthouse Publications Ltd v McWilliam [Unreported, NSWCA, 14 March 1991]
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 26
Vella v John Fairfax Publications Pty Ltd [2000] NSWSC 615
Wickstead & Ors v Browne (1992) 30 NSWLR 1
Sergi v Australian Broadcasting Commission ([983] 2 NSWLR 669

PARTIES: Edward Hayson - plaintiff
John Fairfax Publications Pty Ltd - defendant

FILE NUMBER(S): SC 20300/06

COUNSEL: B R McClintock SC/M F Richardson - plaintiff
T D Blackburn SC - defendant

SOLICITORS: Johnson Winter & Slattery - plaintiff
Freehills - defendant

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

Nicholas J

13 July 2007

20300/06 Edward Hayson v John Fairfax Publications Pty Ltd

JUDGMENT

1 His Honour: The plaintiff has sued the defendant for the publication of an article in the edition of the newspaper “The Sydney Morning Herald” of 10-11 June 2006 under the heading “The brothel owner, league stars and a mystery betting plunge”. The imputations relied upon are pleaded in para 3 of…

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.

Keep reading for free

Create a free CaseChat account to read Hayson v John Fairfax Publications Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 763
Decision Date: 13 July 2007

CaseChat Overview and Summary

The plaintiff, Hayson, brought a defamation claim against the defendant, John Fairfax Publications Pty Ltd, in the Federal Court. Hayson alleged that the defendant published defamatory material about him in articles published in The Sydney Morning Herald and The Age. The defendant sought to have the plaintiff's claim dismissed on the basis that the contextual imputations relied upon by the plaintiff were not capable of arising from the publications and that the particulars of the claim were insufficient.

The court had to decide whether the contextual imputations alleged by the plaintiff were capable of arising from the publications, whether the particulars of the claim were sufficiently specific, and whether the contextual truth defences should be struck out or summarily dismissed. The court held that the contextual imputations were capable of arising and that the particulars of the claim were sufficiently specific. The court also held that the contextual truth defences should be struck out under r 14.28 of the Federal Court Rules or summarily dismissed under the court's inherent jurisdiction.

The court found that the contextual imputations relied upon by the plaintiff were not so vague or fanciful as to be incapable of arising from the publications. The court also found that the particulars of the claim were sufficiently specific to enable the defendant to respond to the allegations. The court held that the contextual truth defences should be struck out under r 14.28 of the Federal Court Rules because the plaintiff had not provided sufficient evidence to support the defences. The court held that the contextual truth defences should not be summarily dismissed because there was a real prospect that the defences could be established at trial.

The court dismissed the defendant's application to strike out or summarily dismiss the plaintiff's claim. The court held that the plaintiff's claim was not so devoid of merit as to be an abuse of process to allow it to proceed. The court also held that the plaintiff's claim was not frivolous or vexatious and that there was a real prospect that the plaintiff could succeed at trial. The court ordered that the defendant's application be dismissed with costs.

Orders