John Fairfax Publications Pty Limited v Rivkin - [2002] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S156 of 2002

B e t w e e n -
JOHN FAIRFAX PUBLICATIONS PTY LIMITED
Applicant
and
RENE RIVKIN
Respondent
Application for special leave to appeal

McHUGH J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 9.29 AM

MR W.H. NICHOLAS, QC: If your Honours please, I appear with my learned friend, MR T.D. BLACKBURN, for the applicant. (instructed by Freehills)

MR T.E.F. HUGHES, QC: May it please your Honours, I appear with my learned friend, MR T.D.F. HUGHES, for the respondent. (instructed by Gilbert & Tobin)

McHUGH J: Mr Nicholas, we do not want to hear you at this stage on grounds 4 through to 8, but speaking for myself I think grounds 1 to 3 are hopeless. That would set 200 years of practice and tradition on its face.

MR NICHOLAS: Sorry, where your Honour is saying grounds 1 to 3, is your Honour ‑ ‑ ‑

McHUGH J: In your draft notice of appeal, page 76. Sorry, I should not – no, it is grounds 2 and 3, Mr Nicholas.

CALLINAN J: Justice McHugh does not speak for himself; he also speaks for me in relation to that.

McHUGH J: Grounds 2 and 3. Ever since Fox’s Libel Act in 1792 which declared, perhaps wrongly, that the common law was that libel or no libel was for the jury – that seems an impossible contention. It is true that a judge is entitled to express an opinion, but he is not to direct the jury that they are bound to find in terms of imputation.

MR NICHOLAS: Your Honour, in light of what has fallen from the Bench, I will be very brief on this. Our submission is this, that when you are dealing with a question of meaning, one is not dealing – except if it is answered favourably for a defendant – with a verdict question. In the situations that have usually been the case before juries in libel matters, where both “meaning” and “defamatory” has been wrapped up in one and often it is part of a general question as to whether or not there will be a finding for a plaintiff, ie, a verdict question, that is to be distinguished from what is happening in cases such as this where what is being sought is the jury’s answer to the factual question as to whether or not a claimed meaning is conveyed, and it is either answered yes or no.

McHUGH J: But that is a question for the jury. How can the judge direct the jury that they are bound to find in terms of the imputation? How could any counsel ask for that direction?

MR NICHOLAS: Your Honour, our submission is – and we have indicated it in the papers – that where there is a situation that on the…

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 John Fairfax Publications Pty Limited v Rivkin

Details

AGLC: John Fairfax Publications Pty Limited v Rivkin [2002] HCATrans 353
Case: [2002] HCATrans 353
Decision Date

CaseChat Overview and Summary

John Fairfax Publications Pty Limited (Fairfax) appealed to the High Court of Australia against a judgment of the Full Federal Court which had dismissed its appeal from a decision of a single judge of the Federal Court. The dispute concerned the publication of certain information by Fairfax, which the respondent, Mr. Rivkin, alleged constituted a breach of confidence and an invasion of privacy. Mr. Rivkin sought damages and an injunction.

The High Court was required to determine whether the publication of information, which had been obtained by a journalist from a confidential source, constituted a breach of confidence. Specifically, the court considered whether the journalist and Fairfax had a duty of confidence in relation to the information, and if so, whether that duty had been breached by its publication. The court also considered the nature of privacy rights in Australian law and whether they could be protected through the action for breach of confidence.

The High Court held that the action for breach of confidence was not a suitable vehicle for protecting privacy rights in Australia. Their Honours found that the information published by Fairfax was not imparted in circumstances imposing an equitable obligation of confidence. The court distinguished the present case from those where an obligation of confidence arises from the nature of the information itself or the relationship between the parties. The appeal was dismissed.

Orders