NEW SOUTH WALES COURT OF APPEAL
CITATION: John Fairfax Publications Pty. Limited & Anor. v. Jones [2004] NSWCA 205
FILE NUMBER(S):
40055/03
40056/03
HEARING DATE(S): 13 April 2004
JUDGMENT DATE: 22/06/2004
PARTIES:
John Fairfax Publications Pty. Limited - 1st appellant
David Lessr - 2nd appellant
Alan Bedford Jones - respondent
JUDGMENT OF: Spigelman CJ Hodgson JA Ipp JA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): SC20340/99
LOWER COURT JUDICIAL OFFICER: Levine J
COUNSEL:
Mr. S. Rares SC with Mr. K. Smark for appellants
Mr. T.D. Blackburn SC with Miss K. Richardson for respondents
SOLICITORS:
Freehills, Sydney for appellants
Blake Dawson Waldron, Sydney for respondents
CATCHWORDS:
DEFAMATION - Defences - Contextual imputation - Whether capable of being carried - Whether "another imputation" - Whether "swamps" plaintiff's imputation - Maisel and Polly Peck defences - Aggravated damages - What particulars required.
LEGISLATION CITED:
Defamation Act 1974 s.16
DECISION:
1. In CA40055 of 2003 (concerning aggravated damages), leave to appeal refused with costs. 2. In CA40056 of 2003 (concerning contextual imputations and other defences: (a) Leave to appeal granted. (b) Notice of Appeal to be filed within 14 days. (c) Appeal allowed in part. (d) Order 1-6 below set aside. (e) In lieu thereof, paragraphs 4 and 6(a)(2)-(6) of the defence are struck out. 3. Leave to both parties to make written submissions concerning costs within 7 days, any reply to be provided within a further 7 days.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40055/03
CA 40056/03
SC 20340/99SPIGELMAN CJ
HODGSON JA
IPP JATuesday 22 June 2004
JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR. V. JONES
JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR. V. JONES
Judgment
SPIGELMAN CJ: I have had the advantage of reading the judgment of Hodgson JA in draft. Subject to the following observations I agree with his Honour.
As to the first contextual imputation on which the Claimant seeks to rely, Levine J held that the matter complained of was confined to the arrangement with the AMP. Hodgson JA distinguishes between an imputation in the form he “acted dishonestly as a broadcaster in that”, which may be so confined and the imputation found by the jury that he “is a dishonest broadcaster in that”. The latter, Hodgson JA concludes, involved an act “indicative of his character” and, accordingly, could carry the contextual imputation.
Hodgson JA is also of the view that an inference as to the character of the Opponent arises from “the linking of the allegation, with allegation of related conduct said to have been engaged in by John Laws”. On this alternative basis, the broader imputation is said to arise.
I note that the Opponent did not put a submission that the Claimant’s first contextual imputation constituted an inference on an inference, as distinct from an implication. (Cf Lewis v Daily Telegraph [1964] AC 234 at 274, 286; Allen v John Fairfax & Sons Ltd New South Wales Supreme Court (unreported)…
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- Case
- [2004] NSWCA 205
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the primary judge had erred in striking out specific paragraphs of the defence, particularly those alleging contextual imputations, and whether the defence of aggravated damages was properly pleaded. The court was required to determine if the imputations pleaded by the defendant were capable of being carried by the matter complained of, and if the defence of contextual imputation, as established in cases like *Maisel* and *Polly Peck*, was available on the facts.
The Court of Appeal, in allowing the appeal in part, found that the primary judge had correctly identified that the contextual imputations pleaded by the defendant were not reasonably capable of being carried by the material complained of. The court reasoned that these imputations were far-fetched, forced, and strained, and did not reflect a fair and reasonable reading of the publication. The court also indicated that the defence of aggravated damages, while not fully detailed in the provided text, was subject to a separate application for leave to appeal which was refused. The court set aside certain orders of the primary judge and struck out specific paragraphs of the defence relating to the contextual imputations.
Orders
Orders of the court
1. In CA40055 of 2003 (concerning aggravated damages), leave to appeal refused with costs. 2. In CA40056 of 2003 (concerning contextual imputations and other defences: (a) Leave to appeal granted. (b) Notice of Appeal to be filed within 14 days. (c) Appeal allowed in part. (d) Order 1-6 below set aside. (e) In lieu thereof, paragraphs 4 and 6(a)(2)-(6) of the defence are struck out. 3. Leave to both parties to make written submissions concerning costs within 7 days, any reply to be provided within a further 7 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: SPIGELMAN CJ
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