Malcolm v Nationwide News Pty Ltd

Reported Decision: (2007) Aust Torts Reports 81-915

New South Wales

Court of Appeal

CITATION:	Malcolm v Nationwide News Pty Limited [2007] NSWCA 254
HEARING DATE(S):	22 August 2007
JUDGMENT DATE:	18 September 2007
JUDGMENT OF:	Beazley JA at 1; Basten JA at 32; McClellan CJ at CL at 34
DECISION:	The appeal is allowed with costs.
CATCHWORDS:	DEFAMATION – defamatory imputation – alleged defamatory imputation arising from newspaper article – article contained allegations of guilt and allegations of police suspicion of guilt – capacity of matter complained of to convey defamatory imputation – whole of the published matter to be considered – whether the trial judge erred in finding that the imputation was not capable of being conveyed
LEGISLATION CITED:	Defamation Act 1974 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 28.2
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Chalmers v Payne (1835) 2 CM & R 156 Charleston & Anor v News Group Newspapers Ltd & Anor [1995] 2 AC 65 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 Griffith v John Fairfax Publications [2004] NSWCA 300 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 1662; [2003] HCA 50 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293; [1982] HCA 50 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
PARTIES:	Rohan Malcolm (Appellant) Nationwide News Pty Limited (Respondent)
FILE NUMBER(S):	CA 40641/06
COUNSEL:	P Jones; D Morgan (Appellant) TD Blackburn SC; ST Chrysanthou (Respondent)
SOLICITORS:	Beilby Poulden Costello (Appellant) Blake Dawson Waldron (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20248/06
LOWER COURT JUDICIAL OFFICER:	Simpson J
LOWER COURT DATE OF DECISION:	13 September 2006

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CA 40641/06

BEAZLEY JA
BASTEN JA
McCLELLAN CJ at CL

18 September 2007

Rohan Malcolm v Nationwide News Pty Limited

Headnote

On 29 June 2005, the Daily Telegraph, of which the respondent is the proprietor, published a news article consisting of a photograph of the appellant above the published material of which complaint is made. The news article contained allegations of the appellant’s guilt in abducting and indecently assaulting a seven year old boy in combination with allegations of police suspicion of the appellant’s guilt. The appellant commenced defamation proceedings alleging that the news article conveyed the imputation that the appellant had abducted and indecently assaulted a seven year old boy.

The matter came before Simpson J for the determination, by way of a separate question, of whether the news article was capable of conveying the imputation alleged. Her Honour considered that when regard was had to the entirety of the news article, it was clear beyond reasonable doubt that what was being reported was a suspicion that the person depicted in the photograph was the person who committed the offence.

The appellant appeals from her Honour’s decision striking out the Statement of Claim alleging that her…