John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd - [2006] ACTSC 108

JOHN HOLLAND GROUP PTY LIMITED and STEPHEN SASSE v
JOHN FAIRFAX PUBLICATIONS PTY LTD and ELIZABETH KAZI
[2006] ACTSC 108 (3 November 2006)

PRACTICE AND PROCEDURE – Defamation – Polly Peck defence – strike out – defence not known to law.

Defamation Act 1957 (Tas), s 18

John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 34

Poly Peck (Holdings) Plc v Trelford [1986] QB 1000

Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519

John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227

Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410

Steiner Wilson & Webster Pty Limited t/as Abbey Bridal v Amalgamated Television Services Pty Limited (2000) Aust Torts Reports 81-537, [1999] ACTSC 123

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1

David Syme & Co Ltd v Hore-Lacy, [2000] VSCA 24

Western Australian Court of Appeal in Nationwide News Pty Ltd v Moodie [2003] WASCA 273

Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206, [2005] SASC 82

Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135

No. SC 650 of 2005

Judge: Connolly J
Supreme Court of the ACT

Date: 3 November 2006

IN THE SUPREME COURT OF THE       )
  )          No. SC 650 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:JOHN HOLLAND GROUP PTY LIMITED ACN 050 242 147
First Plaintiff

AND:STEPHEN SASSE
Second Plaintiff

AND:JOHN FAIRFAX PUBLICATIONS
PTY LTDACN 003 357 720
First Defendant

AND:ELIZABETH KAZI
Second Defendant

ORDER

Judge:  Connolly J
Date:  3 November 2006
Place:  Canberra

THE COURT ORDERS THAT:

Paragraphs 5(a) and 5(b) of the Defence of the first and second defendants be struck out.
The defendants pay the plaintiffs’ costs of this application.

This is an application to strike out certain paragraphs of a defence to a defamation action. The plaintiffs claim to have been defamed in an article written by the second defendant and published by the first defendant in the Australian Financial Review on 5 August 2005. The Australian Financial Review is a newspaper circulating throughout Australia, and the plaintiffs accordingly have in the appropriate manner sought relief in respect of publication in all jurisdictions. The first plaintiff, the corporation, pleads in respect of publication in each of the States and Territories other than New South Wales, and the second plaintiff pleads in respect of publication throughout Australia. There was an interlocutory challenge to the manner in which the plaintiffs pleaded imputations but this was dismissed after full hearing by order of the Master on 21 April 2006 (John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 34).

I was advised at the commencement of this application that the proceedings in respect of the second plaintiff have been settled by way of an agreed sum of damages and an apology, so the matter proceeded only in respect of the corporate plaintiff.

The article was headed “Test of bosses’ right to spy”, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108
Case: [2006] ACTSC 108
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108 involved a defamation claim brought by John Holland Group Pty Ltd and Stephen Sasse against John Fairfax Publications Pty Ltd and Elizabeth Kazi. The plaintiffs sought damages for an article published in the Australian Financial Review, which they alleged was defamatory. The defendants denied the allegations and raised a defence, which the plaintiffs sought to have struck out.

The legal issues before the court were whether the defendants' defence, which included a Polly Peck defence and a contextual imputation defence, was permissible under Australian law. The Polly Peck defence, which involves the defendant pleading an alternative imputation and then justifying that different meaning, was rejected by the High Court in Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519. The intermediate appellate courts across Australia have followed this decision and held that the Polly Peck defence is not recognised in Australian law. The court also needed to determine if the defendants' defence was permissible under the Defamation Act 1957 (Tas).

The court found that the Polly Peck defence was not part of the Australian common law, and that the modified Polly Peck defence, where a defendant may only plead an alternative imputation if it is a mere shade or nuance of the meaning pleaded by the plaintiff, is the only permissible alternative imputation that may be pleaded by a defendant in a defamation action. The court also held that the Tasmanian statutory provision did not justify the pleading of an alternative imputation in a Polly Peck style. Consequently, the court struck out paragraphs 5(a) and 5(b) of the defendants' defence as they set out alternative imputations in an impermissible manner.

The court ordered that paragraphs 5(a) and 5(b) of the Defence of the first and second defendants be struck out. The defendants were ordered to pay the plaintiffs' costs of this application.

Orders