Kermode v Fairfax Media Publications Pty Ltd - [2010] NSWSC 852

CITATION: Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852

HEARING DATE(S): 7 June 2010

JUDGMENT DATE :
4 August 2010

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: Paragraphs 5(a), 9(a) and 13(a) and contextual imputations (A) and (C) of the Defence be struck out.
The defendants have liberty to file an amended defence.

CATCHWORDS: DEFAMATION – actions for defamation – pleading – defence – contextual truth – pleading back – whether s 26 Defamation Act 2005 allows defendants, as part of contextual truth defence, to rely on imputations pleaded by the plaintiff – form of imputations - STATUTES – Acts of Parliament – interpretation – consideration of extrinsic materials – intention of legislature – purposive approach – construction that promotes the purpose or object of s 26 does not change the result arising from the words of the section – words to be given literal and grammatical meaning – language of s 26 does not permit defendants to plead back – result diminishes the value of s 26 defence – statutory reform proposed

LEGISLATION CITED: Defamation Act 1974
Defamation Act 2005
Interpretation Act 1987
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Allen v John Fairfax & Sons Ltd (NSWSC, unreported, 2 December 1988, Hunt J)
Corby v Channel Seven Sydney Pty Ltd (NSWSC, unreported, 20 February 2008, Nicholas J)
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Mills v Meeking [1990] HCA 6; 169 CLR 214
Newnham v Davis (No 2) [2010] VSC 94
Plato Films Ltd v Speidel [1961] AC 1090
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Waterhouse v Hickie (1995) Aust Tort Rep 81-347
Wookey v Quigley [2009] WASC 284

PARTIES: Reginald Lionel Kermode (Plaintiff)
Fairfax Media Publications Pty Ltd (First Defendant)
Fairfax Digital Australia & New Zealand Pty Ltd (Second Defendant)
Linton Besser (Third Defendant)

FILE NUMBER(S): SC 2009/297885

COUNSEL: K P Smark SC/S T Chrysanthou (Plaintiff)
R G McHugh SC/M Polden (Defendants)

SOLICITORS: Johnson Winter & Slattery (Plaintiff)
Pigott Stinson Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Simpson J

4 August 2010

2009/297885 Reginald Lionel Kermode v Fairfax Media Publications Pty Ltd & Ors
JUDGMENT

1 HER HONOUR: In these proceedings, the plaintiff claims damages arising out of three separate publications by the defendant, each of which, he pleads, defamed him. The operative initiating process is an Amended Statement of Claim filed on 27 November 2009.

2 The proceedings are governed by the Defamation Act 2005 (to which, for reasons which will appear, it will be convenient to refer as “the 2005 Act”).

3 This is a separate trial, pursuant to UCPR 28.2, of several questions that have emerged with respect to defences that have been raised on behalf of the defendants. The plaintiff seeks orders, pursuant to UCPR 14.28(1), that certain paragraphs of the Defence be struck out. The issues raised concern a defence of contextual truth…

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: [2010] NSWSC 852
Decision Date: 4 August 2010

CaseChat Overview and Summary

In the matter of Kermode v Fairfax Media Publications Pty Ltd, the defendant published an article alleging the plaintiff had engaged in improper conduct related to her business. The plaintiff initiated legal proceedings for defamation, asserting that the publication had caused her harm. The defendant defended the action by invoking the contextual truth defence under the Defamation Act 2005 and sought to rely on imputations initially pleaded by the plaintiff. The primary legal issue before the court was whether section 26 of the Defamation Act 2005 permits defendants to rely on imputations pleaded by the plaintiff as part of their contextual truth defence. The court also considered whether the form of imputations should be interpreted in a manner that allows pleading back.

The court examined the statutory language of section 26 and its legislative history to ascertain the intent behind the provision. It determined that the literal and grammatical meaning of the section did not permit pleading back, meaning that the defendant could not rely on the plaintiff's imputations as part of their defence. The court held that a purposive approach, aimed at promoting the purpose or object of section 26, did not alter the outcome derived from the words of the section. The court emphasised that the language of section 26 did not allow defendants to plead back, and any construction that would permit this would diminish the value of the contextual truth defence. The court concluded that section 26 was clear and unambiguous and did not provide for pleading back, thus affirming the plaintiff's position.

Orders