Kermode v John Fairfax Publications - [2000] NSWSC 124

CITATION: Kermode v John Fairfax Publications [2000] NSWSC 124

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20110/97

HEARING DATE(S): 3 March 2000

JUDGMENT DATE: 8 March 2000

PARTIES :

Reginald Kermode (Plaintiff)
John Fairfax Publications Pty Limited (Defendant)

JUDGMENT OF: Studdert J

COUNSEL : B. Connell (Plaintiff)
J. Sackar QC/M. Lynch (Defendant)

SOLICITORS: Pigott Stinson Ratner Thom (Plaintiff)
Freehill Hollingdale & Page (Defendant)

CASES CITED: Amalgamated Television Services Pty Limited v Marsen (1998) 43 NSWLR 158
Brimaud v Honeysett (McLelland J, 19 September 1988)
Danieletto v Khera (unreported, McLelland CJ in Eq, 1 September 1994)
Re BPTC Limited (In Liq); Murphy and Allen re Kelly (unreported, Windeyer J, 16 March 1995)
Wentworth v Rogers (unreported, Sperling J, 28 April 1995)
Collier v Howard (unreported, McLelland CJ in Eq, 23 April 1996)
Amalgamated Television Services v Marsden [1999] NSWCA 313

DECISION: Application dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Wednesday 8 March 2000

20110/97 REGINALD KERMODE v JOHN FAIRFAX PUBLICATIONS PTY LTD
JUDGMENT
1   HIS HONOUR: This is an application made by the defendant addressed to two imputations in an amended statement of claim.
2   Reginald Kermode is seeking to recover damages for defamation from John Fairfax Publications Pty Limited, and his claim allegedly arises from an article in the Sun Herald dated 18 August 1996.
3   The matter complained of contains the heading “Like a wounded bull” and under that heading there is a photograph with the caption “Hip pocket charge: Reg Kermode (inset) and taxi commuters at the Kings Cross rank”. There is an inset photograph purporting to be that of the plaintiff in the top left hand corner of the photo of the taxi commuters. Beside and under the photograph I have described, the matter complained of reads:

“Reginald Kermode is chairman and managing director of Taxis Combined, Sydney’s biggest fleet of cabs.

Kermode is also a member of the board of directors of Cabcharge Australia Pty Ltd, the country’s fastest-growing cab credit card company.

And the many-hatted Kermode is president of the Taxi Council of NSW, the peak body representing the taxi industry.

Conveniently, the Taxi Council is located in the same building as Cabcharge Australia in Riley Street, Surry Hills.

The NSW Taxi Industry Association is there too. One big happy family.

Taxis Combined is the biggest shareholder in Cabcharge Australia, holding 100,000 A class shares, 123,000 B class shares, 123,000 C class shares, 123,000 D class shares, 188,000 E class shares and 188,000 F class shares.

Over recent months the Taxi Council has negotiated a new deal for the NSW cab industry.

From July 1, the flag fall, or hiring fee, in taxis went up $2 to $3 - a cool 50 per cent rise. And from July 14, fares rose from $1 a km to $1.07, a 7 pc increase, or almost double the inflation rate.

In return for these extra charges, the Taxi Council has agreed to put drivers in uniforms, paint cabs a distinctive…

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 Kermode v John Fairfax Publications

Details

AGLC: Kermode v John Fairfax Publications [2000] NSWSC 124
Case: [2000] NSWSC 124
Decision Date: 8 March 2000

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Reginald Kermode brought a defamation claim against John Fairfax Publications Pty Limited, stemming from an article published in the Sun Herald on 18 August 1996. The article alleged that Kermode, as chairman and managing director of Taxis Combined and president of the Taxi Council of NSW, had orchestrated fare and rate increases that overcharged the public and taxi owners and drivers. The defendant sought to have certain imputations in the amended statement of claim struck out, arguing they were defective in form and lacked clarity.

The court needed to decide whether the defendant's application to strike out the imputations should be allowed. This involved examining the nature of the imputations, their form, and whether there had been a material change in circumstances since the previous challenge to these imputations was dismissed by Levine J in August 1997. The court also considered the principle that interlocutory orders should not be revisited unless there is a material change in circumstances or the discovery of new evidence that could not have been reasonably presented earlier.

Studdert J found that the defendant's application should be dismissed. The court reasoned that the defendant had previously challenged the same imputations and failed, and no material change in circumstances had occurred since that decision. The court followed the principle that interlocutory orders should not be revisited unless there is a significant change in circumstances or new evidence, as established in cases such as Brimaud v Honeysett and Collier v Howard. The court also noted that the decision in Amalgamated Television Services Pty Limited v Marsden did not warrant revisiting the earlier decision. Therefore, the application was dismissed, and the defendant was ordered to pay the plaintiff's costs of the application.

Orders