Jones v John Fairfax Publications Pty Ltd - [2005] NSWSC 1133

Reported Decision:
67 NSWLR 434

New South Wales

Supreme Court

CITATION:
Jones v John Fairfax Publications Pty Ltd & Anor [2005] NSWSC 1133

HEARING DATE(S): Tuesday 29 March 2005

JUDGMENT DATE :

9 November 2005

JUDGMENT OF:
Simpson J

DECISION:
(i) the plaintiff’s notice of motion is dismissed; (ii) the defendants’ notice of motion is dismissed.

CATCHWORDS:
defamation - jury finding one imputation conveyed and defamatory - plaintiff pleads publication "throughout Australia" - plaintiff seeks leave to amend statement of claim or to discontinue interstate claims - SRC Pt 21 R 2, UCPR Pt 2 R 2 - defendants seek leave to amend their defence - when defamation trial begins - when hearing of proceedings on defamation claim begins - defence of truth - whether a defence of truth at common law available in NSW - whether Defamation Act 1974 (NSW) s15 is unconstitutional and invalid - whether Polly Peck defence available in NSW - whether defence of partial justification available in NSW - whether s15 interferes with constitutional freedom of communication, interstate intercourse - discrimination between residents of different states

LEGISLATION CITED:
Broadcasting Services Act 1992 (Cth)
Defamation Act 1974 (NSW) s7A, s9, s11, s15, s16, s22
Judiciary Act 1903 (Cth), s78B
Supreme Court Act 1970, SCR Part 21 Rule 2, SCR Part 15 Rule 26, SCR Part 67 Rule 11(3) ,
Civil Procedure Act 2005, UCPR Part 14 Rule 28
Constitution of Australia s92, s117

CASES CITED:
Australian Capital Television Pty Ltd & Ors v The Commonwealth of Australia [1992] HCA 45; 177 CLR 106
Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; 169 CLR 436
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 36; 193 CLR 159
Cole v Whitfield [1988] HCA 18; 165 CLR 360
Cunliffe v The Commonwealth [1994] HCA 44; 182 CLR 272
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667
Dr Manock v Advertiser News-Weekend Publishing Co Ltd [2004] SASC 164
Flick v Nash NSWCA 518 of 1986, unreported 9 February 1987
John Fairfax Publications Pty Ltd & Anor v Jones [2004] NSWCA 205
Jones v John Fairfax Publication Pty Ltd & Anor [1999] NSWSC 892
Jones v John Fairfax Publications Pty Ltd & Anor [2002] NSWSC 1211
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
Maisel v Financial Times, Ltd (No 1) [1915] 84 LJKB 2145
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Nationwide News v Wills [1992] HCA 46; 177 CLR 1
Polly Peck (Holdings) Plc & Ors v Trelford & Ors [1986] QB 1000
Stephens & Ors v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211
Theophanous v Herald and Weekly Times [1994] HCA 46; 182 CLR 104
Whelan & Anor v John Fairfax Publications Pty Ltd & Ors [2002] NSWSC 1028; 56 NSWLR 89
Woodger v Federal Capital Press of Australia Pty Ltd…

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

Case: [2005] NSWSC 1133
Decision Date: 9 November 2005

CaseChat Overview and Summary

In the case of Jones v John Fairfax Publications Pty Ltd, the plaintiff, Mr. Jones, sought legal redress against the defendants, John Fairfax Publications Pty Ltd, for alleged defamation. The plaintiff claimed that defamatory statements were published by the defendants throughout Australia, which had caused harm to his reputation. The defendants contested the allegations, asserting that the statements were true and thus not defamatory. The dispute was heard in the Supreme Court of New South Wales.

The court was tasked with several legal issues, including determining the scope of the plaintiff's allegations concerning the geographical extent of the defamatory publications. It also needed to decide whether the plaintiff could amend his statement of claim to specify the areas of publication or discontinue his claims outside of New South Wales. Additionally, the court had to examine the defendants' request to amend their defence, and whether the trial should proceed before or after the hearing of the defamation claim. The court also had to consider the availability of certain defences, such as truth, partial justification, and whether certain provisions of the Defamation Act 1974 (NSW) were constitutional.

The court found that the jury's conclusion that one defamatory imputation was conveyed was binding. It allowed the plaintiff leave to amend his statement of claim to specify the areas of publication and to discontinue his claims outside of New South Wales. The court also granted the defendants leave to amend their defence. The court held that the defence of truth was available in NSW, and that the Defamation Act 1974 (NSW) s15 was constitutional. The court further held that the defence of partial justification was available in NSW, and that s15 did not interfere with the constitutional freedom of communication or interstate intercourse, nor did it discriminate between residents of different states.

The court ordered that the defamation trial would proceed after the hearing of the proceedings on the defamation claim. The plaintiff was granted leave to amend his statement of claim and discontinue his claims outside of New South Wales, while the defendants were granted leave to amend their defence. The court also found that the defence of truth was available in NSW, and that the Defamation Act 1974 (NSW) s15 was constitutional. The court further held that the defence of partial justification was available in NSW, and that s15 did not interfere with the constitutional freedom of communication or interstate intercourse, nor did it discriminate between residents of different states.

Orders