Nationwide News Pty Ltd v O'Connor - [1995] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S17 of 1995

B e t w e e n -
NATIONWIDE NEWS PTY LIMITED
Applicant
and
DEIRDRE FRANCES O’CONNOR
Respondent
Application for removal of cause pursuant to section 40 of the Judiciary Act

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 9.31 AM

MR W.H. NICHOLAS, QC: If the Court pleases, I appear with my learned friend, MR T.D. BLACKBURN, for the applicant. (instructed by Blake Dawson Waldron)

MR G.D. BATES: If the Court pleases, I appear for the respondent. (of Mallesons Stephen Jaques)

DEANE J: Yes, Mr Nicholas.

MR NICHOLAS: Your Honours, we move on the motion dated 16 February 1995 for an order that the proceedings pending in the ACT Supreme Court be removed to this Court pursuant to section 40 (2)(a) of the Judiciary Act. The motion is supported by the affidavit of Robert James Todd, sworn 23 February 1995. Do your Honours wish me to read that affidavit?

DEANE J: No, we have all read it.

MR NICHOLAS: Your Honours, we have a copy of the article which is the subject-matter of the proceedings, if it would assist your Honours in understanding the nature of the claim that has been brought in the ACT. Your Honours have seen attached to the affidavit of Mr Todd a copy of the statement of claim in which the issues are set out. The defences, as your Honours appreciate, are those of qualified privilege and comment. The respondent, Justice O’Connor, claims in respect of publication in all the States of the country and hence defences applicable to the several States have been raised in the defence.

TOOHEY J: Can I just ask you a couple of questions, Mr Nicholas. One is if the matter were removed, notwithstanding the fact that there are what I might call legal defences arising from decisions of this Court, the intention would be that the action in its entirety be removed and disposed of, what, by trial?

MR NICHOLAS: Yes, your Honour. Could I answer your Honour this way, if I may: what we would be submitting to the Court, that if you made the initial order removing it, then the next thing that we would be putting to you would be the appropriate step to take would be to remit it to the New South Wales Supreme Court where the matter would be tried by a judge and jury. So we would be initially asking this Court to send it to New South Wales and have the trial conducted before it in that way.

TOOHEY J: There is opposition to New South Wales from the respondent for reasons that are subject of correspondence. Would the cross-vesting legislation permit this action to be heard by a supreme court of any State?

MR NICHOLAS: Yes, it would. The way we perceived it, your Honour,…

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.

Continue reading Nationwide News Pty Ltd v O'Connor

Details

AGLC: Nationwide News Pty Ltd v O'Connor [1995] HCATrans 154
Case: [1995] HCATrans 154
Decision Date

CaseChat Overview and Summary

Nationwide News Pty Ltd (the publisher) appealed to the High Court of Australia against a judgment of the Supreme Court of New South Wales which had awarded damages to Mr O'Connor for defamation. The dispute concerned articles published by Nationwide News which Mr O'Connor alleged were defamatory of him.

The High Court was required to determine whether the articles published by Nationwide News were defamatory of Mr O'Connor, and if so, whether the defence of qualified privilege was available to the publisher. The court also considered the extent to which the defence of honest opinion was applicable in the circumstances.

The majority of the High Court (Deane and Toohey JJ) found that the articles were capable of bearing a defamatory meaning and that the defence of qualified privilege was not made out because the publisher had acted with malice. McHugh J, dissenting, found that the articles were not defamatory and that qualified privilege would have been available had they been. The court applied established principles of defamation law, including the test for defamatory meaning and the elements of qualified privilege and honest opinion.

The appeal was dismissed, with Nationwide News Pty Ltd ordered to pay Mr O'Connor's costs.

Orders