Moit v Bristow

Case [2005] NSWCA 322
CITATION:

MOIT v. BRISTOW [2005] NSWCA 322
HEARING DATE(S):

22/03/2005
 
JUDGMENT DATE: 


19 September 2005

JUDGMENT OF:

Beazley JA at 1; McColl JA at 2; Campbell AJA at 130
DECISION:

Appeal dismissed with costs
CATCHWORDS:

DEFAMATION - Justification - whether finding that imputation of dishonesty not substantially true was erroneous - held - no - Comment - whether finding that imputation of dishonesty was statement of fact not comment was erroneous - held - no - Common law qualified privilege - whether finding matter complained of not published on occasion of qualified privilege erroneous - held - no - s 13 Defamation Act - whether rejection of defence that matter complained of was published in circumstances where plaintiff was unlikely to suffer harm was erroneous - held - no - DAMAGES - s 46A Defamation Act - whether damages excessive - held - no (D)
LEGISLATION CITED:

Defamation Act 1974
CASES CITED:

Adam v Ward [1917] AC 309
Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 78 ALJR 346
Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614
Kemsley v Foot [1952] AC 345
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166
Padmore v Lawrence (1840) 11 Ad & El 380; (1840) 113 ER 460
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211
Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632
Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044
Books
Odgers on Libel and Slander (6th ed)
Gatley on Libel and Slander (10th ed)
PARTIES:

George Moit (Appellant)
Andrew Julian Bristow (Respondent)

FILE NUMBER(S):

CA 41013/2003
COUNSEL:

R.A. Campbell (Appellant)
S.M. Littlemore SC (Respondent)
SOLICITORS:

Stephen Noss & Associates (Appellant)
Kalantzis Lawyers (Respondent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

13962/01

LOWER COURT JUDICIAL OFFICER:

Puckeridge DCJ



                          CA 41013/03
                          DC 13962/01

                          BEAZLEY JA
                          McCOLL JA
                          CAMPBELL AJA

                          19 September 2005
George MOIT v Andrew Julian BRISTOW

Judgment


1 BEAZLEY JA: I agree with McColl JA.

2 McCOLL JA: In 1998 – 2000…

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Details
AGLC
Moit v Bristow [2005] NSWCA 322
Case
[2005] NSWCA 322
Decision Date

CaseChat Overview and Summary

The appeal concerned a defamation action brought by the plaintiff, Moit, against the defendant, Bristow. The dispute centred on imputations of dishonesty published by the defendant concerning the plaintiff. The appeal was heard by Beazley and McColl JJA, and Campbell AJA.

The court was required to determine whether the primary judge had erred in rejecting the defendant's defences of justification and comment. Specifically, the court considered whether the finding that the imputation of dishonesty was not substantially true was erroneous, and whether the finding that the imputation was a statement of fact rather than comment was also erroneous. Further, the court had to assess whether the primary judge had erred in finding that the matter complained of was not published on an occasion of qualified privilege, and whether the rejection of the defence under s 13 of the Defamation Act, which argued the plaintiff was unlikely to suffer harm, was erroneous. Finally, the court considered whether the damages awarded under s 46A of the Defamation Act were excessive.

The appellate court found no error in the primary judge's findings. The court upheld the determination that the imputation of dishonesty was not substantially true, and that it constituted a statement of fact rather than comment. The conclusion that the publication did not occur on an occasion of qualified privilege was also affirmed, as was the rejection of the defence under s 13 of the Defamation Act. Consequently, the court found that the damages awarded were not excessive.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed 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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