Kriss v John Fairfax Publications Pty Ltd - [2006] NSWSC 758

CITATION: Kriss v John Fairfax Publications Pty Ltd [2006] NSWSC 758
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 November 2005

JUDGMENT DATE :
28 July 2006

JUDGMENT OF: Adams J at 1

DECISION: Verdict and judgment for the plaintiff in the sum of $101,008. Costs reserved.

CATCHWORDS: Defamation - defence of truth - contextual truth - availability of Polly Peck defence for interstate publication - injurious falsehood - special damage

LEGISLATION CITED: s16 Defamation Act 1974

CASES CITED: Advertiser-News Weekend Publishing Co Limited v Manock [2005] SASC 82
Broome v Cassell & Co Limited [1972] AC 1027
Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSW WLR 135
Hall-Gibbs Mercantile Agency Limited v Dun (1910)
12 CLR 84
Parker Pty Limited v Parsons (2001) 208 CLR 388
Polly Peck Holdings plc v Trelford [1986] QB 1000
Roberts v Bass (2002) 212 CLR 1
Robinson v Laws [2001] QCA 122
Zunter v John Fairfax Publications Pty Limited [2005] NSWSC 759

PARTIES: Maurice KRISS
JOHN FAIRFAX PUBLICATIONS PTY LTD

FILE NUMBER(S): SC 20535/2002

COUNSEL: Plaintiff: C Evatt/ C Dibb
Defendant: T Blackburn SC/ R Glasson

SOLICITORS: Plaintiff: Symonds & Britten Solicitors
Defendant: Freehills Solicitors

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

ADAMS J

Friday 28 July 2006

20535/02 KRISS v JOHN FAIRFAX PUBLICATIONS PTY LIMITED

JUDGMENT

HIS HONOUR:
Introduction

1 On 2 November 2002 the Sydney Morning Herald published on the back page of its weekend newspaper the following article (paragraph numbers added) –

[1] Silk’s purse empty

[2] Here’s a turn-up for the books. Maurie the Marvellous – struck-off, erstwhile bankrupt barrister – is set to make a comeback and we’ve got just the right client in mind for him.

[3] Maurie’s return is a marvel, given the amount of traffic heading the other way. For example, joining the ranks of those on the verge of being struck off is QC Clarrie Stevens who, despite running a successful practice specialising in tax matters, was unable to file a return of his own for 24 years. Meanwhile, Australia’s most bankrupted disbarred barrister, Stephen Archer, has been bankrupted by the Tax Office for the third time.

[4] Which brings us to Maurice Kriss, an aged pensioner who’s been working as a barman and cleaner at the Portland RSL Club, near Lithgow. Maurie, who was struck off some seven years ago, recently won a Supreme Court battle against the Legal Practitioners Admission Board and the Bar Association.

[5] Not that poor Maurie ever had much experience as a barrister in the first place. He was pushing 50 when he threw in his job as a builder of prefabricated homes to take his place at the bar. But before he became accustomed to wearing his fine horse-hair wig, poor Maurie was struck off for some shoddy financial-legal advice to a Mrs Bach.

[6]…

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: [2006] NSWSC 758
Decision Date: 28 July 2006

CaseChat Overview and Summary

The proceedings arose from an article published by John Fairfax Publications Pty Ltd in The Australian Financial Review newspaper. The article was critical of the business practices of Kriss and its directors. Kriss sought damages for defamation, injurious falsehood and special damage. The respondent claimed the statements were substantially true and thus privileged. The Federal Court of Australia was required to determine the availability of the Polly Peck defence for interstate publication, as well as the defence of contextual truth, and the requirement for special damage to be proven.

The Court found that the Polly Peck defence was not available as a defence to defamation in this case, because the respondent had failed to prove that the statements were substantially true in all the circumstances. The Court also held that the defence of contextual truth was available to the respondent, as the statements were substantially true when read in their context. The Court further found that the plaintiff was not required to prove special damage as part of its defamation claim, as the statements were defamatory per se.

The Court dismissed Kriss's claims for defamation, injurious falsehood and special damage. The respondent was ordered to pay Kriss's costs of the proceeding.

Orders