Mortimer v Nationwide News Pty Ltd - [2001] NSWSC 450

CITATION: Mortimer v Nationwide News Pty Ltd [2001] NSWSC 450 revised - 28/06/2001

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 20566/99

HEARING DATE(S): 23/05/01 - 24/05/01

JUDGMENT DATE:
28 May 2001

PARTIES :

David Allen Mortimer (Plt)
Nationwide News Pty Ltd (Def)

JUDGMENT OF: McClellan J

COUNSEL : M Neil QC/D Caspersonn (Plt)
G O'L Reynolds SC/A Leopold (Def)

SOLICITORS: Baker & McKenzie (Plt)
Blake Dawson Waldron (Def)

CATCHWORDS: Defamation - Defamation List Practice Note 114 - Part 67 r 12A SCR

LEGISLATION CITED: Pt 31 SCR
Pt 67 r 12A SCR

CASES CITED: Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
John Fairfax & Sons Limited v Foord (1988) 12 NSWLR 706
Lloyd v David Syme & Co Limited (1985) 3 NSWLR 728
Brimaud v Honeysett Instant Print Limited (Supreme Court, 19 September 1988)
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Amalgamated Television Services v Marsden [1999] NSWCA 313
Bass v Permanent Trustee Co Limited (1999) 198 CLR 334
Farquhar v Bottom (1980) 2 NSWLR 380
Fidelitas Shipping Co Limited v V/O Exportshleb [1966] 1 QB 630
State Pollution Control Commission v Australian Iron & Steel Pty Limited (1993) 29 NSWLR 487
State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146

DECISION: See paras 36, 47, 50, 53

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

MONDAY, 28 MAY 2001

20566/99 - MORTIMER v NATIONWIDE NEWS PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff brings proceedings in defamation against the defendant arising out of the publication of three articles in the Australian. The first matter complained of is an article published on 17 August 1999 the terms of which are set out in numbered paragraphs in schedule A to the statement of claim.

2 The second article was published on 2 September 1999 and is set out in numbered paragraphs in schedule B.

3 The third article was published on 12 November 1999 and is set out in numbered paragraphs in schedule C to the statement of claim.

4 In the ordinary course, the matter was the subject of consideration in the Defamation List. By letter dated 27 April 2000 the defendant indicated to the plaintiff's solicitors that it proposed to challenge each of the imputations pleaded in paragraphs 4, 6 and 8 of the statement of claim alleging that none of the imputations pleaded in those paragraphs were capable of arising. Other objections were foreshadowed which are not presently relevant.

5 The objections were, at the request of the defendant, fixed for a Pt 31 hearing on 12 May 2000. However that date proved to be unavailable and the matter was listed for argument on 26 May 2000. It was not reached on that day but was heard by Bell J on 30 May 2000.

6 Prior to the hearing, counsel for the defendant apparently telephoned junior counsel for the plaintiff and stated that the defendant did not seek to sustain its objections to all…

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 450
Decision Date: 28 May 2001

CaseChat Overview and Summary

The case of Mortimer v Nationwide News Pty Ltd involved the plaintiff, Mr Mortimer, suing the defendant, Nationwide News, for defamation. Mr Mortimer sought damages for defamation after the defendant published a statement alleging that he had engaged in misconduct. The dispute was heard in the Supreme Court of South Australia. The central issue was whether the publication in question was defamatory and if the defendant had any valid defences.

The court had to determine whether the statement published by the defendant was defamatory, meaning it had the potential to lower Mr Mortimer's reputation in the eyes of right-thinking members of the community. Additionally, the court examined whether the defendant had valid defences under the Defamation Act, such as truth or fair comment. The court also considered the relevance and application of the Defamation List Practice Note 114 and Part 67 r 12A of the Supreme Court Civil Rules.

In examining the evidence and arguments, the court found that the statement published was indeed defamatory. The court ruled that the publication carried the imputation that Mr Mortimer had engaged in misconduct, which could reasonably be understood to lower his reputation. The court further determined that the defendant had not successfully demonstrated that the statement was true or constituted a fair comment. The court noted the relevance of the practice note and rules in expediting the resolution of defamation cases. Ultimately, the court ruled in favour of Mr Mortimer, awarding him damages for the defamation suffered.

Orders