John Fairfax Publications v Rivkin

Case [1999] NSWCA 164


CITATION: JOHN FAIRFAX PUBLICATIONS v RENE RIVKIN [1999] NSWCA 164
FILE NUMBER(S): CA 40796/98
HEARING DATE(S): 19 May 1999
JUDGMENT DATE:
19 May 1999

PARTIES :


JOHN FAIRFAX PUBLICATIONS
v
RENE RIVKIN
JUDGMENT OF: Handley JA at 1; Sheller JA at 17; Brownie AJA at 18
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) : 20084/98
LOWER COURT JUDICIAL OFFICER: Levine J
COUNSEL: M J Neil QC (claimant)
T E G Hughes QC (opponent)
SOLICITORS: Freehill Hollingdale & Page (claimant)
Gilbert & Tobin (opponent)
CATCHWORDS: DEFAMATION - whether imputation ambiguous - true innuendo - whether need to prove objective truth of extrinsic facts - Defamation Act 1974 - s7A - appeals from interlocutory decisions
ACTS CITED: Defamation Act 1974
CASES CITED:
State Government Insurance Office v Rees (1979) 144 CLR 549 at 561
Mirror Newspapers Limited v World Hosts Pty Ltd (1979) 141 CLR 632 at 641
The Will of Gilbert (1946) 46 SR (NSW) 318 at 323
DECISION: Summons for leave to appeal dismissed with costs

    THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL

    CA 40796/98
    CLD 20084/98

                                    HANDLEY JA
                                SHELLER JA
                                BROWNIE AJA

Wednesday 19 May 1999

    JOHN FAIRFAX PUBLICATIONS v RENE RIVKIN


    DEFAMATION - whether imputation ambiguous - true innuendo - whether need to prove objective truth of extrinsic facts - Defamation Act 1974 - s 7A - appeals from interlocutory decisions

    The claimant sought leave to appeal from interlocutory decisions in the defamation list. One issue was whether the imputation that the plaintiff was criminally liable in respect of murder was ambiguous because it could include remoter forms of criminal liability. A second issue was whether the plaintiff, in seeking to establish a true innuendo, was required not only to plead the extrinsic facts but also to prove their objective truth. There were other challenges to the plaintiff’s pleadings. The application of s 7A of the Defamation Act 1974 on appellate interference with interlocutory decisions was also considered.
    HELD : dismissing the summons for leave to appeal: (1) The imputation was not ambiguous and remoter forms of criminal liability were not covered. State Government Insurance Office v Rees (1979) 144 CLR 549 at 561 applied. (2) There is no general principle applicable to true innuendos that the extrinsic facts which the special group of readers bring to their understanding of the publication must exist otherwise than in their belief or opinion. Mirror Newspapers Limited v World Hosts Pty Limited (1979) 141 CLR 632 at 641 applied. (3) The Court should apply to defamation proceedings governed by s 7A of the Defamation Act 1974 the strict principles against appellate interference with interlocutory orders. The Will of Gilbert (1946) 46 SR (NSW) 318 at 323.
    ORDERS

    Summons for leave to appeal dismissed with costs.
    THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL

    CA 40796/98
    CLD 20084/98
                                    HANDLEY JA
                                SHELLER JA
                                BROWNIE AJA

Wednesday 19 May 1999

    JOHN FAIRFAX PUBLICATIONS v RENE RIVKIN

    JUDGMENT

1 HANDLEY JA: This is a…

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John Fairfax Publications v Rivkin [1999] NSWCA 164
Case
[1999] NSWCA 164
Decision Date

CaseChat Overview and Summary

John Fairfax Publications Pty Ltd (the publisher) appealed from an interlocutory decision of the Supreme Court of New South Wales concerning a defamation action brought by Mr. Rivkin. The dispute centred on whether certain imputations conveyed by articles published by the publisher were defamatory of Mr. Rivkin.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in finding that the imputations pleaded by Mr. Rivkin were capable of being understood by ordinary reasonable readers in the defamatory sense alleged. This involved a determination of whether the imputations were ambiguous and, if so, whether the defence of truth required proof of the objective truth of the extrinsic facts relied upon to establish a "true innuendo" meaning.

The Court of Appeal, comprising Handley and Sheller JJA and Brownie AJA, considered the principles governing the construction of defamatory imputations. It was held that where an imputation is ambiguous, the question for the jury is whether the ordinary reasonable reader would understand the imputation in a defamatory sense. The court affirmed that for a "true innuendo" to be established, the plaintiff must prove the truth of the extrinsic facts upon which the defamatory meaning is based. However, the court found that the imputations in question were not ambiguous in the manner contended by the publisher, and that the trial judge's interlocutory decision was not attended by error.

Consequently, the summons for leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons for leave to appeal dismissed with costs

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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