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Makeig v Derwent

Makeig v Derwent

Case [2000] NSWCA 136 2 June 2000

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CITATION: MAKEIG v DERWENT [2000] NSWCA 136

FILE NUMBER(S): CA 40198/99

HEARING DATE(S): 10/03/00

JUDGMENT DATE:
2 June 2000

PARTIES :

Peter Makeig
Peter Derwent

JUDGMENT OF: Spigelman CJ at 1; Mason P at 52; Heydon JA at 53

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 6144/97

LOWER COURT
JUDICIAL OFFICER : Puckeridge DCJ

COUNSEL: T Molomby / R Rasmussen (Appellant)
C Evatt / G Hansen (Respondent)

SOLICITORS: Jennifer E Darin (Appellant)
Carters Law Firm (Respondent)

CATCHWORDS: DEFAMATION - defences - qualified privilege - relationship between the common law the Lange and the statutory defences - malice - "reasonableness" - Defamation Act 1974 (NSW), s22

LEGISLATION CITED: Defamation Act 1974 (NSW)

CASES CITED:
Braddock v Bevins [1948] 1 KB 580
Lang v Willis (1934) 52 CLR 637
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Palmer v Belan [1999] NSWSC 187
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Templeton v Jones [1984] 1 NZLR 448

DECISION: 1 Appeal allowed with costs.; 2 Grant leave to file the cross appeal but dismiss the cross appeal with costs.; 3 Vacate the order of the trial judge entering verdict for the Plaintiff in the sum of $70,000.; 4 Affirm the order of the trial judge that the Defendant pay the Plaintiff’s costs in the proceedings before him.; 5 Remit the proceeding to the District Court to determine whether, as alleged in paragraph 4 of the Amended Defence, the matter complained which conveyed the imputation set out in par 2B(e) of the Amended Statement of Claim, was published under qualified privilege at common law and, if so, to determine the appropriate damages for imputation (a) and to make consequential orders.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40198/99

SPIGELMAN CJ
MASON P
HEYDON JA
Friday 2 June 2000

Peter MAKEIG v Peter DERWENT

Facts
The Respondent was a candidate in a Local Council By-Election. The Appellant published a leaflet which, at trial before Puckeridge DCJ, was found to contain two imputations which defamed the Respondent. Leave to appeal was granted with respect to the trial judge’s findings with respect to one of these imputations.
Reasoning
(per Spigelman CJ, Mason P and Heydon JA agreeing)
1 The consideration in Lange of reasonableness of conduct do not have a direct bearing on the defence of qualified privilege at common law. His Honour erred in applying a test of reasonableness to the defence of qualified privilege at common law.
2 His Honour failed to determine other aspects of the Respondent’s case that the defence of qualified privilege was unavailable.
3 There is nothing inherently inconsistent in a finding that two quite distinctive imputations, conveyed by different parts of the same publication on different subject matters, are not actuated by the same motive.
Orders
1 Appeal allowed with costs.
2 Grant leave to file the cross appeal but dismiss the cross appeal with costs.
3 Vacate…

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 Makeig v Derwent

Details

AGLC: Makeig v Derwent [2000] NSWCA 136
Case: [2000] NSWCA 136
Decision Date: 2 June 2000

CaseChat Overview and Summary

Makeig v Derwent concerned an appeal to the New South Wales Court of Appeal regarding a defamation action. The plaintiff, Makeig, had sued the defendant, Derwent, for defamatory publications. The primary dispute revolved around the availability and application of the defence of qualified privilege, both at common law and under the *Defamation Act 1974* (NSW).

The central legal issues before the Court of Appeal were the relationship between the common law defence of qualified privilege and the statutory defence provided by section 22 of the *Defamation Act 1974* (NSW), the meaning of "reasonableness" in the context of these defences, and the concept of malice as it pertains to defeating a claim of qualified privilege. The court was required to determine whether the publications in question were protected by qualified privilege and, if so, whether any malice on the part of the defendant vitiated that defence.

The Court of Appeal analysed the interplay between the common law and statutory qualified privilege defences, noting that the statutory defence, while drawing on common law principles, introduced its own specific requirements. The court considered the elements necessary to establish qualified privilege, including the existence of a duty or interest to publish and a corresponding duty or interest in the recipient to receive the information. The court also examined the test for malice, which involves a lack of honest belief in the truth of the publication. The court found that the trial judge had erred in certain aspects of their determination of the qualified privilege defence.

Consequently, the Court of Appeal allowed the appeal, granted leave to file a cross-appeal but dismissed it, and vacated the trial judge's order for damages. The matter was remitted to the District Court to determine whether the relevant publication was made under qualified privilege at common law, and if so, to assess the appropriate damages. The order for the defendant to pay the plaintiff's costs at trial was affirmed.

Orders

Orders of the court

1 Appeal allowed with costs.; 2 Grant leave to file the cross appeal but dismiss the cross appeal with costs.; 3 Vacate the order of the trial judge entering verdict for the Plaintiff in the sum of $70,000.; 4 Affirm the order of the trial judge that the Defendant pay the Plaintiff’s costs in the proceedings before him.; 5 Remit the proceeding to the District Court to determine whether, as alleged in paragraph 4 of the Amended Defence, the matter complained which conveyed the imputation set out in par 2B(e) of the Amended Statement of Claim, was published under qualified privilege at common law and, if so, to determine the appropriate damages for imputation (a) and to make consequential orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Makeig v Derwent [2000] NSWCA 136

Most Recent Citation

French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155

Cases Citing This Decision

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
Citation 1

…poration [2008] NSWSC 764 John Fairfax Publications v O’Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789 Makeig v Derwent [2000] NSWCA 136 Makim v John Fairfax & Sons Ltd (1990) A Def R 40,521 Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Vilo v John…
French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155
Citation 2 (Para 39)

…ondent’s renewed vulnerability to fresh attack. That absence of a test of reasonableness was recently confirmed by Spigelman CJ in Makeig v Derwent [2000] NSWCA 136, at [39]-[41]; his Honour said - ‘... as the reasoning in Lange itself indicates, this test [of reasonableness] is not applicable to a claim for qualif…
Roberts v Bass [2002] HCA 57
Citation 3 (Para 3)

…Court accordingly and did not pursue their Appeal to the Full Court against the Trial Judge's rejection of the Lange defence." [266] Makeig v Derwent [2000] NSWCA 136.…
Makeig v Derwent (No 2) [2000] NSWCA 142
Citation 4

…ant) C Evatt / G Hansen (Respondent) SOLICITORS: Jennifer E Darin (Appellant) Carters Law Firm (Respondent) DECISION: Orders made in Makeig v Derwent [2000] NSWCA 136 varied.…

See all citing cases →

Cases Cited

Palmer v Belan [1999] NSWSC 187
Citation 1

…ITED: Braddock v Bevins [1948] 1 KB 580 Lang v Willis (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Templeton v Jones [1984] 1 NZLR 448 DE…
Lange v Australian Broadcasting Corporation [1997] HCA 25
Citation 2

…Defamation Act 1974 (NSW) CASES CITED: Braddock v Bevins [1948] 1 KB 580 Lang v Willis (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Temple…
Stephens v West Australian Newspapers Ltd [1994] HCA 45
Citation 3

…ration (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Templeton v Jones [1984] 1 NZLR 448 DECISION: 1 Appeal allowed with costs.; 2 Grant leave to file the cross appeal but dismiss the cross appeal with…
Lang v Willis [1934] HCA 51
Citation 4

…nableness" - Defamation Act 1974 (NSW), s22 LEGISLATION CITED: Defamation Act 1974 (NSW) CASES CITED: Braddock v Bevins [1948] 1 KB 580 Lang v Willis (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Step…
[1948] 1 KB 580 [1948] 1 KB 580
Citation 5

…ory defences - malice - "reasonableness" - Defamation Act 1974 (NSW), s22 LEGISLATION CITED: Defamation Act 1974 (NSW) CASES CITED: Braddock v Bevins [1948] 1 KB 580 Lang v Willis (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newsp…
[1984] 1 NZLR 448 [1984] 1 NZLR 448
Citation 6

…lan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Templeton v Jones [1984] 1 NZLR 448 DECISION: 1 Appeal allowed with costs.; 2 Grant leave to file the cross appeal but dismiss the cross appeal with costs.; 3 Vacate the order of the tr…
[1999] 3 WLR 1010 [1999] 3 WLR 1010
Citation 7

…llis (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Templeton v Jones [1984] 1 NZLR 448 DECISION: 1 Appeal allowed with costs.; 2 Grant leav…

Legislation Cited

Defamation Act 1974 (NSW) 22
2 mentions

CITATION:	MAKEIG v DERWENT [2000] NSWCA 136
FILE NUMBER(S):	CA 40198/99
HEARING DATE(S):	10/03/00
JUDGMENT DATE:	2 June 2000
PARTIES :	Peter Makeig Peter Derwent
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 52; Heydon JA at 53

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 6144/97
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

COUNSEL:	T Molomby / R Rasmussen (Appellant) C Evatt / G Hansen (Respondent)
SOLICITORS:	Jennifer E Darin (Appellant) Carters Law Firm (Respondent)
CATCHWORDS:	DEFAMATION - defences - qualified privilege - relationship between the common law the Lange and the statutory defences - malice - "reasonableness" - Defamation Act 1974 (NSW), s22
LEGISLATION CITED:	Defamation Act 1974 (NSW)
CASES CITED:	Braddock v Bevins [1948] 1 KB 580 Lang v Willis (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Palmer v Belan [1999] NSWSC 187 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Templeton v Jones [1984] 1 NZLR 448
DECISION:	1 Appeal allowed with costs.; 2 Grant leave to file the cross appeal but dismiss the cross appeal with costs.; 3 Vacate the order of the trial judge entering verdict for the Plaintiff in the sum of $70,000.; 4 Affirm the order of the trial judge that the Defendant pay the Plaintiff’s costs in the proceedings before him.; 5 Remit the proceeding to the District Court to determine whether, as alleged in paragraph 4 of the Amended Defence, the matter complained which conveyed the imputation set out in par 2B(e) of the Amended Statement of Claim, was published under qualified privilege at common law and, if so, to determine the appropriate damages for imputation (a) and to make consequential orders.