John Fairfax Publications Pty Ltd v Gacic

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

JOHN FAIRFAX PUBLICATIONS PTY LTD
& ANOR   APPELLANTS

AND

ALEKSANDRA GACIC & ORS   RESPONDENTS

John Fairfax Publications Pty Ltd v Gacic
[2007] HCA 28
14 June 2007
S480/2006

ORDER

1.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 30 June 2006 and in their place make the following orders:

"1.      Appeal allowed with costs.

2.        Set aside the orders of Bell J made on 2 June 2005 and in their  place order that:

(a)verdicts be entered that the matter complained of by the appellants carries each of the imputations identified as imputations (a) and (c) and that imputations (a) and (c) are defamatory;

(b)a verdict be entered for the respondents in relation to imputation (b); and

(c)the issues of whether the matter complained of carries the imputation identified as imputation (d) and whether that imputation is defamatory be remitted for determination by a jury in accordance with s 7A of the Defamation Act 1974 (NSW).

3.The appellants to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.

4.Order that the appellants pay 25 per cent of the respondents' costs of the trial before Bell J and a jury, the respondents pay 50 per cent of the costs of the appellants of that trial, and that the balance of the costs of that trial abide the outcome of the further trial pursuant to s 7A of the Defamation Act 1974 (NSW)."

2.Otherwise, appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

T D Blackburn SC with D R Sibtain for the appellants (instructed by Freehills)

G O'L Reynolds SC with C A Evatt and P Kulevski for the respondents (instructed by Beazley Singleton Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GLEESON CJ AND CRENNAN J. The issue in this appeal concerns the power given to the New South Wales Court of Appeal by s 108(3) of the Supreme Court Act 1970 (NSW) ("the Supreme Court Act"), and the exercise of that power at a certain stage of an action being heard pursuant to the Defamation Act 1974 (NSW) ("the Defamation Act")[1].

   [1]The Defamation Act was repealed by the Defamation Act 2005 (NSW) but continues to apply because of the date when the causes of action accrued.

2. The facts are set out in the reasons for judgment of Callinan and Heydon JJ.  The case concerns that form of defamation which involves injury to business reputation, that is, the publication of imputations that have a tendency to injure a person in his or her business, trade, or profession.  That the law of defamation affords such protection is not surprising.  Suppose someone says:  "X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his…