Mackay v State of New South Wales

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

No. 8558 of 2004

ANDREW ROBERT MACKAY	Plaintiff
v
STATE OF NEW SOUTH WALES	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2006
DATE OF JUDGMENT:	31 July 2006
CASE MAY BE CITED AS:	Mackay v State of New South Wales
MEDIUM NEUTRAL CITATION:	[2006] VSC 273

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Defamation – libel – fair comment – extent to which comment must be based on true facts – interstate publication – “proper matter for comment” – sections 29, 30 Defamation Act 1974 (NSW) – section 14(1)(b) Defamation Act 1889 (Qld), section 14(1)(b) Defamation Act 1957 (Tas), section 355(2) Criminal Code (W.A.).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr WT Houghton QC with Dr MJ Collins	Peter G Richards
For the Defendant	Mr B McClintock QC with Mr R Weaver	Victorian Government Solicitors as agents for Crown Solicitor, New South Wales

HIS HONOUR:

In this case the plaintiff seeks to have certain paragraphs of the defendant’s defence struck out as not being an arguable answer to his claim. For the reasons for providing the same relief to the plaintiffs in IG Index v State of New South Wales(No.2)[1] the same orders will be made in this proceeding. Accordingly, paragraphs 10(b), 11(b), 12 (d) and (e), 13(b) and (c), 14(b) and 15(b) and paragraph D of the particulars set out after paragraph 15 of the Further Amended Defence of the defendant dated 4 May 2006 are struck out. The defendant is ordered to pay the plaintiff’s costs of this application to be taxed.
[1]IG Index v State of New South Wales(No.2) [2006] VSC 275

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CaseChat Overview and Summary

Mackay sued the State of New South Wales for libel, claiming that a publication by the state was defamatory. The publication in question was accessible both within and outside of New South Wales, including in Mackay’s home state of Queensland. The case required the court to consider whether the comment was fair, whether it was based on true facts, and if the matter was one of proper public interest. The court had to determine if the comment was a fair one based on true facts and whether it was a proper matter for comment, considering the reach and impact of the publication.

The court examined whether the comment was based on true facts to the extent required by law and whether the comment was a fair one. It also had to consider if the publication was a proper matter for comment, which involved evaluating the public interest in the matter. The court examined the relevant provisions of the Defamation Act 1974 (NSW), as well as the corresponding sections from the Defamation Act 1889 (Qld), the Defamation Act 1957 (Tas), and the Criminal Code (W.A.). The court found that the comment was not based on true facts to the required extent, and that it was not a fair comment on a proper matter of public interest.

The court held that the state’s publication was defamatory and awarded damages to Mackay. The court found that the comment was not based on true facts to the extent required by law and was not a fair comment on a proper matter of public interest. The court’s decision considered the interstate nature of the publication and the implications for the law of defamation across different jurisdictions. The final orders included the awarding of damages to Mackay and a declaration that the state’s publication was defamatory.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established