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John Fairfax Publications Pty Ltd v Blake

John Fairfax Publications Pty Ltd v Blake

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Case Copied 28 November 2001 37 min read

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Reported Decision:
53 NSWLR 541

New South Wales

Court of Appeal

CITATION: John Fairfax Publications Pty. Limited v. Blake, David Syme & Co. Limited v. Blake [2001] NSWCA 434

FILE NUMBER(S): CA 40801/01; CA40817/01

HEARING DATE(S): 17 Ocotober 2001

JUDGMENT DATE:
28 November 2001

PARTIES :

John Fairfax & Co. Pty. Ltd. - claimant
David Syme & Co. Ltd. - claimant
Dominic Blake - opponent

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 28; Rolfe AJA at 70

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 20279/00

LOWER COURT
JUDICIAL OFFICER : Levine J

COUNSEL: Mr. G. O'L. Reynolds SC with Mr. R. McHugh for claimants
Mr. R. Campbell for opponent

SOLICITORS: Freehills from John Fairfax & Co. Ltd.
Minter Ellison for David Syme & Co. Ltd.
Gallagher De Reszke for opponent

CATCHWORDS: DEFAMATION - Pleading - Contextual imputation - Requirements - Specificity - Whether injury from plaintiff's imputations to be weighed against injury from the contextual imputations or from the matters by reason of which such imputations are substantially true. D.

LEGISLATION CITED: Defamation Act 1974 ss.9, 16.
Supreme Court Rules Pt.67 r.11 and r.15.

CASES CITED:
Feros v. West Sydney Radio Pty. Ltd. NSWCA 22/6/82
Hepburn v. TCN Channel Nine Pty. Ltd. [1983] 2 NSWLR 682
Whelan v. John Fairfax & Sons Limited (1988) 12 NSWLR 148
John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706
Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135.
Jackson v. John Fairfax & Sons Limited [1981] 1 NSWLR 36
Waterhouse v. Hickie (1995) Aust.Tort.Reports 81-347 at 62, 493-62,494
TCN Channel Nine Pty. Limited v. Antoniadis (1998) 44 NSWLR 682 at 691-2.

DECISION: Leave to appeal granted, and appeal dismissed.

CA 40801/01
CA 40817/01
SC 20279/00

SPIGELMAN CJ
HODGSON JA
ROLFE AJA

JOHN FAIRFAX PUBLICATIONS PTY. LIMITED V. BLAKE

DAVID SYME & CO. LIMITED V. BLAKE

Judgment

1 SPIGELMAN CJ:

I have had the advantage of reading the judgment of Hodgson JA in draft. His Honour sets out the issues in the case, the relevant statutory provisions and Rules of Court, the submissions made by the parties and refers to relevant authorities. I reach the same conclusion as his Honour, but by a somewhat different route.

2 Each of the Claimants’ contextual imputations, denoted A, B and C, are the subject of precise Particulars of Truth, as fully set out by Hodgson JA. These Particulars identify the way in which the Claimants propose to establish that the contextual imputations are matters of “substantial truth”. This is of significance for s16(2)(b)(ii) of the Defamation Act 1974. For present purposes however, it is pertinent to identify their significance for s16(2)(c) which provides:

“16(2)(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.”

3 One of the bases on which Levine J struck out the imputations in the present case is that they were not, either alone or 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: [2001] NSWCA 434
Decision Date: 28 November 2001

CaseChat Overview and Summary

John Fairfax Publications Pty Ltd (the publisher) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning a defamation action brought by Mr Blake. The dispute centred on the publisher's defence of contextual imputation, which alleged that the imputations conveyed by the defamatory material were not the sole cause of any damage to Mr Blake's reputation, as other imputations, which were substantially true, also conveyed a similar or greater degree of harm.

The primary legal issue before the Court of Appeal was the proper construction and application of the defence of contextual imputation under section 15 of the Defamation Act 1974 (NSW). Specifically, the court had to determine whether the injury to the plaintiff's reputation arising from the alleged defamatory imputations should be weighed against the injury arising from the contextual imputations, or against the injury arising from the matters by reason of which those contextual imputations are substantially true.

The Court of Appeal, comprising Spigelman CJ, Hodgson JA, and Rolfe AJA, held that the defence of contextual imputation requires the defendant to demonstrate that the contextual imputations, which are substantially true, convey a meaning that is either the same as, or more damaging than, the meaning conveyed by the defamatory imputations. The court reasoned that the purpose of the defence is to protect publishers from liability when the overall sting of the publication, when considered in its entirety and with substantially true contextual imputations, is not more damaging than the truth. The court clarified that the comparison is between the damage caused by the defamatory imputations and the damage caused by the substantially true contextual imputations, not the underlying facts that make them true.

Leave to appeal was granted, but the appeal was ultimately dismissed.

Orders

Orders of the court

Leave to appeal granted, and appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	John Fairfax Publications Pty. Limited v. Blake, David Syme & Co. Limited v. Blake [2001] NSWCA 434
FILE NUMBER(S):	CA 40801/01; CA40817/01
HEARING DATE(S):	17 Ocotober 2001
JUDGMENT DATE:	28 November 2001
PARTIES :	John Fairfax & Co. Pty. Ltd. - claimant David Syme & Co. Ltd. - claimant Dominic Blake - opponent
JUDGMENT OF:	Spigelman CJ at 1; Hodgson JA at 28; Rolfe AJA at 70

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 20279/00
LOWER COURT JUDICIAL OFFICER :	Levine J

COUNSEL:	Mr. G. O'L. Reynolds SC with Mr. R. McHugh for claimants Mr. R. Campbell for opponent
SOLICITORS:	Freehills from John Fairfax & Co. Ltd. Minter Ellison for David Syme & Co. Ltd. Gallagher De Reszke for opponent
CATCHWORDS:	DEFAMATION - Pleading - Contextual imputation - Requirements - Specificity - Whether injury from plaintiff's imputations to be weighed against injury from the contextual imputations or from the matters by reason of which such imputations are substantially true. D.
LEGISLATION CITED:	Defamation Act 1974 ss.9, 16. Supreme Court Rules Pt.67 r.11 and r.15.
CASES CITED:	Feros v. West Sydney Radio Pty. Ltd. NSWCA 22/6/82 Hepburn v. TCN Channel Nine Pty. Ltd. [1983] 2 NSWLR 682 Whelan v. John Fairfax & Sons Limited (1988) 12 NSWLR 148 John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706 Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135. Jackson v. John Fairfax & Sons Limited [1981] 1 NSWLR 36 Waterhouse v. Hickie (1995) Aust.Tort.Reports 81-347 at 62, 493-62,494 TCN Channel Nine Pty. Limited v. Antoniadis (1998) 44 NSWLR 682 at 691-2.
DECISION:	Leave to appeal granted, and appeal dismissed.