Jones v Sutton

Case [2004] NSWCA 439


Reported Decision:

61 NSWLR 614

Court of Appeal


CITATION: JONES v. SUTTON [2004] NSWCA 439
HEARING DATE(S): 22/04/04; 10/06/04
JUDGMENT DATE:
26 November 2004
JUDGMENT OF: Beazley JA at 1; Santow JA at 82; Stein AJA at 83
DECISION: 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.
LEGISLATION CITED: Defamation Act 1974 (NSW)
Suitor's Fund Act 1951 (NSW)
CASES CITED: Assaf v. Skalkos (2002) Aust Torts Reports 81-644
Australian Telecommunications Commission v. Krieg Enterprises Pty. Limited (1976) 14 SASR 303
Balog and Stait v ICAC (1990) 169 CLR 625
Bropho v State of Western Australia (1990) 171 CLR 1
Cassell & Co Limited v. Broome [1972] AC 1027
Chappell v. Mirror Newspapers (1984) Aust Torts Reports 80-691
Coco v R (1994) 179 CLR 427
Dingle v. Associated Newspaper Limited [1961] 2 QB 162
John Fairfax Publication Pty. Limited v. Rivkin (2003) 201 ALR 77
King and Mergen Holdings Pty. Limited v. McKenzie (1991) 24 NSWLR 305
Morosi v. Mirror Newspapers [1977] 2 NSWLR 749
Overseas Tankship (U.K.) Limited v. The Miller Steamship Co. Pty. Ltd. [1967] 1 AC 617
Palmer Bruyn v. Parsons (2001) 208 CLR 388
Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997)
Potter v Minahan (1908) 7 CLR 277
Rodway v The Queen (1990) 169 CLR 515
Singleton v John Fairfax & Sons Ltd (No. 1) [1983] 2 NSWLR 722
Tillmanns Butcheries Pty Limited v. AMIEU (1979) 42 FLR 331

PARTIES :

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


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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.

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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