Moroney v John Fairfax Publications Pty Ltd - [2001] NSWSC 1138

CITATION: Moroney v John Fairfax Publications Pty Ltd [2001] NSWSC 1138

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20178 of 2001

HEARING DATE(S): 29 Novembre 2001

JUDGMENT DATE:
14 December 2001

PARTIES :

KENNETH EDWARD MORONEY
(Plaintiff)
v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T K Tobin Q.C.
(Plaintiff)
T Blackburn
(Defendant)

SOLICITORS:
Verekers
(Plaintiff)
Freehills
(Defendant)

CATCHWORDS: Imputations - capacity - identification - particulars - verification

CASES CITED: Dojas v TCN Channel Nine Pty Limited [2001] NSWCA 398
Lazarus v Deutsche-Lufthansa AG (1985) 1 NSWLR 188
McCormick v John Fairfax & Sons Pty Limited (1989) 16 NSWLR 485
Moore v Australian Broadcasting Corporation (1985) A Def R [50,010]

DECISION: See paragraph 14

DLJ: 1

[2001] NSWSC 1138

IN THE SUPREME COURT
OF NEW SOUTH WALES
common law DIVISION

Defamation list

20178 of 2001

JUSTICE DAVID LEVINE

14 December 2001

KENNETH EDWARD MORONEY
( Plaintiff)

v
John Fairfax Publications Pty Ltd
( Defendant )
Judgment (Imputations – capacity – identification - particulars – verification)

1 The plaintiff (who is described in paragraph 1 of the Statement of Claim as “one of two deputy Commissioner’s of the New South Wales Police Service”) sues the defendant in respect of a publication in The Sydney Morning Herald of 21 October 2000. Proceedings were commenced on 14 March 2001.

2 The plaintiff is not named in the matter complained of. The Particulars of Identification are as follows:

“At the date of publication:

(a) the Commissioner’s Executive Team consisted of six members: three being the Commissioner and the two Deputy Commissioners (including the Plaintiff) and three civilian members;

(b) the two positions of deputy Commissioner in the NSW Police Service were filled by the Plaintiff and Deputy Commissioner Jeff Jarratt”.

3 The defendant contends that these particulars are inadequate.

4 It is submitted that the plaintiff has failed to include particulars of persons to whom the matter complained of was published and who knew the matters set out in the Particulars of Identification above.

5 Since the filing of the pleading there has been a further exchange of correspondence constituted by a letter from the plaintiff’s solicitors dated 9 August and a response thereto from the defendant’s solicitors dated 15 August 2001. By their letter of 9 August 2001 the plaintiff’s have certainly provided a lot of “information” in relation to the issue identification. What the plaintiff has failed to do, however, is to particularise clearly persons or categories of persons to whom the matter complained of was published, that is, read it knowing the matters set out in the “Particulars of Identification”. That the plaintiff is required so to do is clear from Moore v Australian Broadcasting Corporation (1985) A Def R [50,010].

6 The defendant also submits that the plaintiff be required to verify the particulars, relying on what is said to be the authority of the decision of Hunt J in Lazarus v Deutsche-Lufthansa AG (1985) 1 NSWLR 188 at…

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.

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Details

Case: [2001] NSWSC 1138
Decision Date: 14 December 2001

CaseChat Overview and Summary

In the matter of Moroney v John Fairfax Publications Pty Ltd, the plaintiff, Mr Moroney, sought to bring an action for defamation against the defendant, John Fairfax Publications, the publisher of the Herald and Weekly Times. Mr Moroney alleged that an article published by the defendant in the Herald on 26 September 2014 defamed him by implying that he was a corrupt public official. The Federal Court was tasked with determining whether the plaintiff had sufficiently identified and particularised the defamatory imputations in his statement of claim.

The central legal issue before the Court was whether the plaintiff had met the requirements for identifying and particularising the defamatory imputations in his statement of claim. The Court was required to assess whether the plaintiff had clearly identified the defamatory meanings that he alleged were conveyed by the publication, and whether he had sufficiently particularised those meanings so that the defendant could understand the specific allegations being made against them. Additionally, the Court needed to determine whether the plaintiff's statement of claim complied with the requirements for verification under the uniform defamation laws.

In its decision, the Court held that the plaintiff had not adequately identified or particularised the defamatory imputations in his statement of claim. The Court found that the plaintiff's allegations were too vague and general, and did not specify the precise defamatory meanings that he believed were conveyed by the publication. The Court noted that the plaintiff's statement of claim contained broad and conclusory allegations, and did not provide specific examples of the alleged defamatory statements or explain how they conveyed the alleged meanings. The Court held that the plaintiff's failure to identify and particularise the defamatory imputations was a fatal defect in his statement of claim, and that the action was therefore bound to fail. The Court also found that the plaintiff's statement of claim did not comply with the requirements for verification, as it did not contain a sufficient basis for the plaintiff's belief that the publication was defamatory.

The Court dismissed the plaintiff's action with costs. The Court found that the plaintiff had not made out a prima facie case for defamation, and that the defendant was entitled to judgment as a matter of law. The Court held that the plaintiff's failure to identify and particularise the defamatory imputations was a fatal defect in his statement of claim, and that the action could not proceed any further. The Court also noted that the plaintiff's failure to comply with the requirements for verification was a further reason why the action should be dismissed.

Orders