Mularczyk v John Fairfax Publications Pty Ltd

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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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Details
Case
[2001] NSWCA 467
Decision Date

CaseChat Overview and Summary

The appeal concerned a defamation action brought by the appellant, Mr. Mularczyk, against the respondent, John Fairfax Publications Pty Ltd. The dispute arose from articles published by the respondent which Mr. Mularczyk alleged were defamatory. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the jury's verdict in favour of the respondent was perverse, and consequently, whether leave to appeal should be granted. This involved an examination of the evidence presented at trial and whether the jury's findings were so unreasonable that they could not stand.

The Court of Appeal considered the evidence and the jury's findings in light of the principles governing defamation and the circumstances in which a jury verdict can be set aside as perverse. After reviewing the material, the Court concluded that there were sufficient grounds to grant leave to appeal.

Leave to appeal was granted.

Orders

Orders of the court

(i) Leave to appeal granted.

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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