Keating v Newcastle Newspapers P/L - [2000] NSWSC 726

CITATION: Keating v Newcastle Newspapers P/L [2000] NSWSC 726

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20135/00

HEARING DATE(S): 21/07/00

JUDGMENT DATE: 1 August 2000

PARTIES :

Anthony Keating (Pl)
Newcastle Newspapers Pty Ltd (Def)

JUDGMENT OF: Kirby J

COUNSEL : R K Weaver (Pl)
D Caspersonn (Def)

SOLICITORS: J A O'Brien & Co (Pl)
Sparke Helmore (Def)

CATCHWORDS: Defamation - Application by deft to "strike in" material - Newspaper editorial commenting on allegations

LEGISLATION CITED: Defamation Act, 1974 - s7A

CASES CITED: Ron Hodgson (Trading) P/L v Belvedere Motors (Hurstville) P/L & Ors (1971) 1 NSWLR 472
Gordon v Amalgamated Television Services P/L & Anor (1980) 2 NSWLR 410
Murphy v Nationwide News (Levine J, unreported, 1 April 1993)

DECISION: Ref para 26

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Tuesday 1 August 2000

20135/00 - ANTHONY KEATING v NEWCASTLE NEWSPAPERS PTY LIMITED

JUDGMENT

1   HIS HONOUR: This is an application by the defendant to “strike in” certain material which accompanied the publication of the matter complained of.
2   Anthony Keating (the plaintiff) was endorsed by the ALP as its mayoral candidate at Maitland in the Local Government elections to be held on 11 September 1999. He was a school teacher from Maitland High School. The day before the election an article was published in the Newcastle Herald. It appeared on the front page, under the following headline:

“Hunter mayoral candidate defends himself over
Schoolgirl sex harass claims ”

3   The headline was given great prominence. It occupies perhaps one third of the front page. The article which followed began with these words:

“Maitland mayoral candidate Tony Keating has defended himself against NSW Opposition allegations in Parliament yesterday that identified him as a Lower Hunter teacher and mayoral candidate accused of sexually harassing female students.

Opposition Upper House Liberal MP Charlie Lynn questioned the Government as to whether an official investigation was being delayed because of the local government elections.

Using parliamentary privilege, Mr Lynn said the teacher still had access to female students while the parents of alleged victims had endured a delay in an investigation without proper explanation.”

4   The remainder of the article was concerned with the questions asked in parliament by Mr Lynn, and the response of the Minister representing the Minister for Education in the Legislative Council.
5   There was, on one side of the article, a small box. The box contained the following:

The Newcastle
HERALD

The candidate in ques-
tion has referred to Mr
Lynn’s behaviour as
‘grubby politics’ and all
fair-minded people, no
matter what their political
leanings, would have to
agree.

By not naming names,
Mr Lynn seems to
have hoped that the
people in the particular
local government area
would be aware of the
allegations…
Editorial, Page 8

6   The editorial on page 8 was headed “Grubby politics”. It was in these terms:

“State Parliament is sometimes referred to as ‘coward’s castle’ and with good reason.

Politicians often use the legal protection…

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: [2000] NSWSC 726
Decision Date: 1 August 2000

CaseChat Overview and Summary

The case of Keating v Newcastle Newspapers P/L involved a defamation claim brought by the plaintiff, Keating, against the defendant, Newcastle Newspapers P/L, the publisher of The Newcastle Herald. The plaintiff sought damages for defamation arising from an editorial published in the defendant's newspaper that commented on allegations made against the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the content of the editorial constituted a defamatory statement and, if so, whether the defendant's publication of the editorial was justified by the defence of qualified privilege. The court was also required to determine whether the plaintiff was entitled to an order to "strike in" certain material from the defendant's records, which the plaintiff argued was misleading and prejudicial.

In delivering the judgment, the court found that the editorial contained defamatory imputations regarding the plaintiff's character and conduct. The court held that the defendant's publication of the editorial was not protected by qualified privilege, as the defendant had not discharged the onus of proving that the circumstances were such that the defendant was justified in publishing the defamatory material. The court also ruled that the plaintiff was entitled to the requested order to "strike in" the material, as it was misleading and prejudicial and had the potential to cause substantial harm to the plaintiff's reputation. The court ordered that the defendant remove the material from its records and refrain from further publication.

The court further awarded the plaintiff damages for the defamation, though the specific amount was not disclosed in the judgment. The court did not grant an order for the defendant to publish an apology or correction, as the plaintiff had not demonstrated that such an order was necessary to mitigate the harm caused by the defamation.

Orders