Malcolm v Nationwide News Pty Ltd

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Case Copied 23 min read
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

- 15 -


                          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…

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Details
Case
[2007] NSWCA 254
Decision Date

CaseChat Overview and Summary

The appeal concerned a defamation claim brought by Mr. Malcolm against Nationwide News Pty Ltd, arising from a newspaper article published by the defendant. The central dispute revolved around whether the article, which contained allegations of guilt and police suspicion of guilt, was capable of conveying a defamatory imputation about Mr. Malcolm. The matter was heard on appeal.

The primary legal issue before the court was whether the trial judge had erred in finding that the imputation conveyed by the published matter was not capable of being defamatory. This required the appellate court to consider the entire published material and assess its capacity to convey a defamatory meaning about the appellant.

The Court of Appeal allowed the appeal, finding that the trial judge had erred in their assessment. The appellate judges concluded that the newspaper article, when read as a whole, was capable of conveying a defamatory imputation concerning Mr. Malcolm. Consequently, the appeal was allowed with costs.

Orders

Orders of the court

The appeal is allowed with costs.

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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