John Fairfax Publications Pty Ltd v Jones

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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 20340/99

SPIGELMAN CJ
HODGSON JA
IPP JA

Tuesday 22 June 2004

JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR. V. JONES
JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR. V. JONES

Judgment

  1. 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.

  2. 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.

  3. 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.

  4. 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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Details
Case
[2004] NSWCA 205
Decision Date

CaseChat Overview and Summary

In *John Fairfax Publications Pty Ltd v Jones*, the Court of Appeal of New South Wales considered an appeal concerning defences raised in a defamation action. The plaintiff had sought to strike out certain paragraphs of the defence, including those relating to contextual imputations and aggravated damages.

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

SPIGELMAN CJ
On 30 May 2002, the plaintiff applied for orders, including an order that paragraphs 4, 6, 7 and 8 of the Defence and related particulars be struck out. DECISIONS OF THE PRIMARY JUDGE The primary decision gave his decision on both applications on 18 December 2002. In relation to the plaintiff’s application for the orders specified above, the primary judge made those orders and gave the following reasons:20 The test to be applied in determining the availability of a possible contextual imputation for the purposes of s16 is no different, of course, to that propounded in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, namely that of “reasonableness”. 21 On any fair and reasonable reading of the matter complained of, a conclusion safely can be reached that it is essentially quite focused in its dealing with the AMP and Mr Jones and South Sydney Leagues Club. I say this neither ignoring or notwithstanding so much of the submission for the defendants as points to the article being published in a context of banks and their dealings with Mr John Laws. 22 Any fair reading of the matter complained of will expose disparagement of the plaintiff in the context of the AMP matter. 23 The defendants’ meanings seek to encapsulate notions of “dishonesty” in a generalised sense in relation to “a company”; “betrayal” by the plaintiff of his audience and “abuse” of his position as a broadcaster, with the notion of “misleading and deceptive” (conduct) thrown in to contextual imputation (6). 24 The defendants rightly concede that whether or not an imputation arises is a matter of impression and the ordinary reasonable reader is entitled to engage in a certain amount of loose thinking. The defendants go on to say, however, that the import of this matter complained of is “clear”. It may be that certain of the meanings contended for by the defendants do not have their exact counterparts “in the denotative meaning” of the words employed. It is then argued that when one focuses on the real issues which the article addresses, there can be no question that the reader would understand it to suggest that the plaintiff had “betrayed” his audience, “abused” his position and engaged in that “deceptive and misleading” conduct. 25 As the plaintiff suggests, by looking at the contextual imputations, a strong impression is gained that they have been constructed or “tailored” with a view to extraneous matters which the defendants conceive they might have a chance of proving rather than by reference to the matter complained of itself. They are employed as a mechanism for “shoehorning” the defence into perceived parameters the Australian Broadcasting Authority inquiry as set out in the particulars; (the report of the ABA inquiry was delivered to me). 26 The defendants protest that the plaintiff cannot complain about a generalised imputation as to his dishonesty as a broadcaster when that concept, it is said, has by the plaintiff himself been made “generally” and then been specifically exemplified by reference to the AMP matter. I do not agree with the defendants’ contention that the matter complained of is “clearly not confined to” the specific instance where the plaintiff entered into a “secret deal” with the AMP and that it invites the ordinary reader to consider the general character of the plaintiff - that is, a person who would enter into a “secret deal” - in circumstances where there is a public controversy in relation to Radio Station 2UE and its affiliates and/or presenters broadcasting comments of an editorial nature for which a fee or otherwise valuable consideration was received. 27 Contextual imputations 2 to 6 are “simply not there”, that is, I hold to be incapable of being carried by the matter complained of. They are far-fetched, forced, strained and fanciful meanings. 28 As to the first contextual imputation that the plaintiff is a dishonest broadcaster, I reject that meaning; it is incapable of arising generally or more specifically as sought to be advanced by the defendants by reason of the invitation to the ordinary reasonable reader referred to, above. Such authorities as Maisel v Financial Times (1925) 112 LT 953 and MacGrath v Black (1925) 95 LJ KB 951 do not permit the defendants to run a case which those authorities sustain when there is no meaning available to found such a case. 29 The defendants’ reference to what is described as “the material in the box” (the reference to John Laws), is insufficient to found the proposition that the article is really dealing with, on a reasonable basis, generalised dishonesty on the part of this plaintiff.

Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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