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 2001PARTIES :
John Fairfax & Co. Pty. Ltd. - claimant
David Syme & Co. Ltd. - claimant
Dominic Blake - opponentJUDGMENT 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 opponentSOLICITORS: Freehills from John Fairfax & Co. Ltd.
Minter Ellison for David Syme & Co. Ltd.
Gallagher De Reszke for opponentCATCHWORDS: 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…
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- Case
- [2001] NSWCA 434
- Decision Date
CaseChat Overview and Summary
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
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Ratio Decidendi
Legal Principle Established
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