1. Appeal allowed.; 2. Set aside the verdict and orders made by the trial judge; 3. Judgment for the appellant in the sum of $1,000.00 in relation to the cause of action arising out of the Dubbo bus publication; 4. Judgment for the appellant in the sum of $1,000.00 in relation to the cause of action arising out of the Dubbo bus republication.; 5. Judgment for the appellant in the sum of $3,000.00 in relation to the cause of action arising out Councillor's lounge publication. ; 6. Verdicts for the appellant accordingly.; 7. Order the respondent to pay the costs at first instance and of the appeal.; 8. The respondent is to have a certificate under the Suitor's Fund Act 1951 (NSW) if so entitled.
CATCHWORDS:
DEFAMATION - Defamation Act 1974 (NSW), s.13 - Defence - Test to be applied - Meaning of "Not likely to cause harm" - Irrelevance of whether harm was in fact occasioned - "Grapevine effect" - Republication - Relevance of content of publication. - DEFAMATION - Reputation - Relevance of reputation of plaintiff to s.13 defence - Knowledge of reputation of plaintiff. - DEFAMATION - Onus. - DEFAMATION - Damages - Whether harm was actually occasioned.
Darren Gregor Jones (Appellant) Ruth Sutton (Respondent)
FILE NUMBER(S):
CA 41206/02; 40290/03
COUNSEL:
T.E.F. Hughes QC/A. Leopold (Appellant) B. McClintock SC/R.K. Weaver/A.T.S. Dawson (Respondent)
SOLICITORS:
Allens Arthur Robinson (Appellant) Freehills (Respondent)
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 4496/01
LOWER COURT JUDICIAL OFFICER :
Gibson DCJ
CA 41206/02 CA 40290/03
BEAZLEY JA SANTOW JA STEIN AJA
26 November 2004
JONES v. SUTTON
HEADNOTE
The…
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
Jones v Sutton [2004] NSWCA 439
Case
[2004] NSWCA 439
Decision Date
CaseChat Overview and Summary
In Jones v Sutton, the appellant (Jones) appealed to the Court of Appeal of New South Wales against a decision of the trial judge concerning defamation proceedings. The dispute involved publications made by the respondent (Sutton) which Jones alleged were defamatory.
The primary legal issue before the Court of Appeal was the proper application of the defence under section 13 of the Defamation Act 1974 (NSW). This defence requires the defendant to prove that the matter complained of was not likely to cause harm to the reputation of the plaintiff. The court was also required to consider the relevance of the plaintiff's actual reputation and whether harm was in fact occasioned by the publication, as well as the effect of republication.
The Court of Appeal reasoned that the test under section 13 of the Defamation Act 1974 (NSW) is an objective one, focusing on whether the publication was *likely* to cause harm, irrespective of whether harm was actually occasioned. The court held that the "grapevine effect" and the content of any republication were relevant considerations in assessing this likelihood. Furthermore, the court determined that the plaintiff's existing reputation and the defendant's knowledge of that reputation were relevant to the assessment of whether the publication was likely to cause harm. The onus of proving the section 13 defence rested on the defendant.
The appeal was allowed, the verdict and orders of the trial judge were set aside, and judgment was entered for the appellant, Jones, in varying amounts for different publications. The respondent, Sutton, was ordered to pay the costs at first instance and of the appeal.
Orders
Orders of the court
1. Appeal allowed.; 2. Set aside the verdict and orders made by the trial judge; 3. Judgment for the appellant in the sum of $1,000.00 in relation to the cause of action arising out of the Dubbo bus publication; 4. Judgment for the appellant in the sum of $1,000.00 in relation to the cause of action arising out of the Dubbo bus republication.; 5. Judgment for the appellant in the sum of $3,000.00 in relation to the cause of action arising out Councillor's lounge publication. ; 6. Verdicts for the appellant accordingly.; 7. Order the respondent to pay the costs at first instance and of the appeal.; 8. The respondent is to have a certificate under the Suitor's Fund Act 1951 (NSW) if so entitled.