Mularczyk v John Fairfax Publications Pty Ltd

CITATION:	Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467
FILE NUMBER(S):	CA 40108/01
HEARING DATE(S):	24 October 2001
JUDGMENT DATE:	12 December 2001
PARTIES :	Claimants/Appellants: Liliana Mularczyk, Tsico Galettis, George Cullen, Deanna Knapman, Edward Noon, Mark Dixon Opponent/Respondent: John Fairfax Publications Pty Ltd
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Heydon JA at 37

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	21448/96
LOWER COURT JUDICIAL OFFICER :	Levine J

COUNSEL:	Claimants/Appellants: Ms L McCallum Opponent/Respondent: Mr T Blackburn
SOLICITORS:	Claimants/Appellants: MacMahon Associates Opponent/Respondent: Freehills
CATCHWORDS:	Defamation - Imputation of Dishonesty - Perverse Jury Verdict
LEGISLATION CITED:	Defamation Act 1974 (NSW)
CASES CITED:	Mechanical & General Inventions Co v Austin [1935] AC 346 Hocking v Bell (1942) 42 SR (NSW) 130 Cairns v John Fairfax & Sons LTd [1983] 2 NSWLR 708 Australian Newspaper Co Ltd v Bennett [1894] AC 284 Broome v Agar (1928) 138 LT 698 Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68 Austin v Culpepper (1684) 2 Show 313 Macrae v Sutherlan (1889) 16 R 476 Harrigan v Jones [2000] NSWSC 119
DECISION:	Leave to appeal granted; Appeal allowed

CA 40108/01
SC 21448/96
SHELLER JA
BEAZLEY JA
HEYDON JA


Wednesday, 12 December 2001

MULARCZYK & ORS v JOHN FAIRFAX PUBLICATIONS PTY LIMITED

FACTS

The appellants, teachers at a Sydney high school, claimed they were defamed in two articles which appeared in the Sydney Morning Herald. The jury found that only one of the matters complained of, namely “that the appellant[s] behaved dishonestly in that [each] pretended to be suffering from stress in order to avoid being transferred to a new school” carried a defamatory imputation, but found that the imputation was not defamatory.

On appeal it was claimed that the jury verdict in relation to the found imputation was perverse. It was also argued, although not strongly, that the jury should have found that the other pleaded imputations were made out.

HELD per Beazley JA (Sheller JA and Heydon JA agreeing)
(i) The jury verdict was perverse: the allegation of dishonesty reflected on the personal and professional character of the appellants and admitted of only one answer – namely that it was defamatory.

ORDERS
(i) Leave to appeal granted.

(ii) Appeal allowed.

(iii) Verdict of the jury set aside.

(iv) Order a new trial in respect of the imputation “that the [appellant], a teacher at a New South Wales high school, behaved dishonestly in that she pretended to be suffering from stress in order to avoid being transferred to a new school” .

(v) Remit the matter to the Common Law Division for rehearing.

(vi) Set aside the costs orders made in the court below and remit the question of costs of the jury trial before Levine J to the trial judge on the new trial.

(vii) The respondent is to pay the appellants’ costs of the appeal, but is to have a certificate under the Suitors’ Fund Act 1951 (NSW), if so entitled.


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