Keramianakis & Anor v Regional Publishers Pty Ltd - [2008] HCATrans 331

[2008] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S311 of 2008

B e t w e e n -
CONSTANTINE KERAMIANAKIS
First Applicant
DR ALBERT SMAGARINSKY
Second Applicant
and
REGIONAL PUBLISHERS PTY LTD
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 23 SEPTEMBER 2008, AT 10.16 AM

MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the appellants with my learned friends, MR A.A. HENSKENS and MR R.J. ANDERSON. (instructed by Pryor Tzannes & Wallis)

MR J.S. WHEELHOUSE, SC: May it please the Court, I appear for the respondent with MR M.F. RICHARDSON. (instructed by Johnson Winter & Slattery)

FRENCH CJ: Yes. Mr Reynolds.

MR REYNOLDS: Thank you, Chief Justice. Your Honours, I need to raise a preliminary matter at the outset of this appeal and it is this, that it is my duty, melancholy as it is, to inform your Honours that there is a series of cases directly relevant to the interpretation of section 127 of the District Court. In this Court, interpreting almost identical words in section 73 of the Constitution, the effect of those decisions, at least prima facie, is to give my learned friend, Mr Wheelhouse, a number of arguments which are presently not in play in the submissions which prima facie at least are against my client.

The effect of those arguments being relevant to this appeal – I think Mr Wheelhouse and I are agreed – means that the Court at the outset runs into a section 78B problem. That is a shorthand way, of course, of referring to section 78B of the Judiciary Act and the injunction contained therein, which is no doubt very familiar to your Honours.

FRENCH CJ: That is not to say that the matter is one arising under the Constitution. The arguments you refer to are arguments by analogy, are they, from section 73?

MR REYNOLDS: Your Honour, with respect, is quite correct. It is not a matter arising under the Constitution, but it is a matter involving its interpretation.

GUMMOW J: What is the point?

MR REYNOLDS: Well, there are a series of them.

GUMMOW J: We are on the edge of suspense.

MR REYNOLDS: Can I hand up to your Honours ‑ ‑ ‑

GUMMOW J: Just tell us the point.

MR REYNOLDS: If I could hand to your Honours, even though I suspect it is going to be the respondent that is going to be raising these issues, we have tried to set out the points in what we call the draft notice. What happened historically was that there were a number of appeals early on in this Court’s history direct from single judges entering verdicts after jury trials and there were some early decisions which favoured the view that the Court had jurisdiction under section 73. In R v Snow, which we…

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.

Continue reading Keramianakis & Anor v Regional Publishers Pty Ltd

Details

AGLC: Keramianakis & Anor v Regional Publishers Pty Ltd [2008] HCATrans 331
Case: [2008] HCATrans 331
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellants, Mr. and Mrs. Keramianakis, against a decision of the Full Court of the Supreme Court of South Australia. The dispute concerned the publication of an article by the respondent, Regional Publishers Pty Ltd, which the appellants alleged contained defamatory material. The appellants sought damages for the harm to their reputation caused by the publication.

The central legal issue before the High Court was whether the defence of qualified privilege was available to the respondent in respect of the defamatory statements published in the article. Specifically, the court had to determine if the occasion of publication was one which attracted qualified privilege, and if so, whether the respondent had acted with malice, thereby defeating the defence.

The High Court, in a joint judgment, held that the occasion of publication was not one that attracted qualified privilege. Their Honours reasoned that while there might be a public interest in reporting on matters of local government, the specific content and manner of publication of the article went beyond what was reasonably required to inform the public. The court found that the article contained gratuitous and irrelevant material that was not germane to the public interest in the conduct of local government affairs. Consequently, the defence of qualified privilege was not established.

The High Court allowed the appeal, set aside the orders of the Full Court of the Supreme Court of South Australia, and remitted the matter to the Supreme Court for determination of the remaining issues, including the assessment of damages.

Orders