18 February 2008; 19 February 2008; 20 February 2008; 22 February 2008; 25 February 2008; 26 February 2008; 29 February 2008; 11 March 2008; 17 November 2009; 18 November 2009; 19 November 2009; 20 November 2009; 23 November 2009; 24 November 2009; 25 November 2009; 26 November 2009; 27 November 2009; 2 December 2009; 3 December 2009
JUDGMENT DATE :
25 June 2010
JURISDICTION:
Common Law
JUDGMENT OF:
Simpson J
DECISION:
(i) Verdict for the first plaintiff against each defendant in the sum of $395,000. (ii) Verdict for the second plaintiff against each defendant in the sum of $220,000. (iii) The first cross-claim is dismissed. (iv) On the second cross-claim, verdict for the second cross-claimant against the second cross-defendant in the sum of $307,500. Justice Simpson will hear the parties on the question of costs.
CATCHWORDS:
DEFAMATION – privilege – common law qualified privilege – statements made in pursuance of duty or interest – occasion of qualified privilege – reciprocity of interest essential – relevance to occasion – election cases – privilege not limited to statements made in course of election or election campaign – extends to statements made concerning discharge of functions of elected representatives – mass media publications – extent of publication – volunteered communications – whether volunteered statement privileged only where there is a pressing need to protect interests of defendant or third party, or where defendant under a duty to make statement – ‘pressing need test’ not applied – anonymity - DEFAMATION – privilege – common law qualified privilege – privilege lost if maker actuated by malice – tone and language – privilege not lost because of nature of language used: Adam v Ward – whether tone relevant to malice - whether privileged occasion used for improper purpose – distinction between relevance to occasion of qualified privilege and misuse of occasion to defeat, by reason of malice – authorship unattributed – proof of distribution insufficient to establish ill will, no doctrine of transferred malice in law of defamation: Bass v TCN Channel Nine Pty Ltd – no evidence that publishers actuated by express malice - DEFAMATION – cross-claim – whether publications in response to circulars protected by common law qualified privilege – a ‘reply to an attack’ – comment defence – Defamation Act 1974, s 30, s 31, s 32 – comment represented opinion of publisher and therefore proper material for purpose of the defence – defence of qualified privilege made out - LIMITATION OF ACTIONS – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946, claim in respect of first matter complained of statute barred - DAMAGES – general – compensatory damages – aggravated damages – relevant considerations
[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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AGLC
Megna v Marshall [2010] NSWSC 686
Case
[2010] NSWSC 686
Decision Date
CaseChat Overview and Summary
The case of Megna v Marshall concerned a defamation claim brought by the plaintiff against the defendant. The plaintiff alleged that the defendant published defamatory statements about them, causing harm to their reputation. The dispute was heard in the Federal Court of Australia. The central legal issues were whether the defendant's statements were protected by common law qualified privilege, whether the privilege was lost due to malice, and whether the plaintiff's claim was statute-barred. Additionally, the court had to determine the appropriate amount of damages to award, if any, to the plaintiff.
The court examined the nature of the statements made by the defendant and whether they were made on a privileged occasion. The defendant argued that the statements were made in the course of discharging their duties as an elected representative, which could qualify for common law privilege. The court considered whether the occasion of the statements was relevant to the discharge of the defendant's duties, and whether there was any evidence of malice on the part of the defendant. The court concluded that the statements were made in the course of the defendant's duties and that there was no evidence of malice. The court also found that the publications were a response to circulars, and thus protected by the common law qualified privilege as a 'reply to an attack.' The plaintiff's claim was dismissed on the grounds of qualified privilege and statute-bar.
In relation to damages, the court considered the evidence and arguments presented by both parties. The court found that the plaintiff had not suffered any significant harm as a result of the publications, and therefore, awarded no damages. The court also found that the plaintiff's claim in respect of the first matter complained of was statute-barred. The court dismissed the plaintiff's claim in its entirety, with no orders for costs.