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New South Wales v IG Index PLC

New South Wales v IG Index PLC

Case [2007] VSCA 212 27 September 2007

Defamation

Comment/Fair Comment Defences

Defamation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8556 of 2004

STATE OF NEW SOUTH WALES	Applicant
v.
IG INDEX plc (ARBN 099 337 390) and ANOR		Respondents (Plaintiffs)
No. 8557 of 2004
STATE OF NEW SOUTH WALES	Applicant
v.
MATTHEW WILLIAM WILSON	Respondent (Plaintiff)
No. 8558 of 2004
STATE OF NEW SOUTH WALES	Applicant
v.
ANDREW ROBERT MACKAY	Respondent (Plaintiff)
No. 8559 of 2004
STATE OF NEW SOUTH WALES	Applicant
v.
CRAIG WILLIAM THIESSEN and ORS	Respondents (Plaintiffs)

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JUDGES:	BUCHANAN, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 September 2007
DATE OF JUDGMENT:	27 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 212

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DEFAMATION — Statements by NSW Government regarding the legality of spread betting services offered by the applicants — Application for leave to appeal against decision to strike out various comment/fair comment defences — Nature of comment/fair comment defences at common law and under the legislation of various States and Territories — Context relevant to comment/fair comment defences — Where words capable of various meanings, comment/fair comment defences not bound to fail — Words used did not carry a necessary implication which was false — Application for leave to appeal granted and appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant in each case	Mr R G McHugh SC with Mr R K Weaver	Crown Solicitor of New South Wales
For the Respondent/s in each case	Mr W T Houghton QC with Dr M J Collins	Peter G Richards

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BUCHANAN JA:

I will ask Neave JA to deliver the first judgment.

NEAVE JA:

The plaintiffs, including IG Index plc, Wilson, Mackay and Thiessen, brought four separate defamation actions against the applicant in these proceedings, the State of New South Wales (‘NSW’). NSW now seeks leave to appeal against interlocutory orders made by a Supreme Court judge, which struck out its pleaded defences of comment and fair comment. On 8 September 2006, the leave application was referred to the court which would hear the appeal.

Each of the plaintiffs relies on allegedly defamatory statements made by a spokesman for the New South Wales Gaming Minister, Richard Face, to a journalist, which were then republished by The Australian newspaper in every state and territory.

The plaintiffs carried on a business of spread betting in New South Wales. In other proceedings in this matter, the judge explained the concept of spread betting as follows:

Spread betting is a form of gambling in which the punter backs his predictions of the movements in indices associated with prices in organised markets such as commodity, shares, futures, currency and similar markets. … It is sufficient for present purposes that spread betting is, on IG Index’s own material, clearly a form of gambling.[1]

[1][2006] VSC 108, [2]. See also City Index Ltd v Leslie (1992) 1 QB 98, 103 (Lord Donaldson MR).

The statements which the plaintiffs allege were made by the spokesman to a journalist with The Australian were that:

IG has flouted NSW…

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 New South Wales v IG Index PLC

Details

AGLC: State of New South Wales v IG Index plc [2007] VSCA 212
Case: [2007] VSCA 212
Decision Date: 27 September 2007

CaseChat Overview and Summary

The New South Wales Government brought an action against IG Index PLC, seeking damages for defamation. The dispute arose from statements made by the New South Wales Government that questioned the legality of spread betting services provided by IG Index. The matter was heard in the High Court of Australia, which was asked to decide whether the lower court had correctly struck out various comment/fair comment defences raised by IG Index. The central legal issue was the application of the comment/fair comment defences at common law and under various state and territory legislations. The court had to determine if the lower court was correct in dismissing these defences and whether the words used by the New South Wales Government necessarily implied a false statement that would defeat the defences.

The High Court examined the nature of the comment/fair comment defences, noting that such defences are not strictly bound to fail simply because the words used are capable of various meanings. The court found that the words in question did not carry a necessary implication that was false. The High Court concluded that the lower court had erred in striking out the defences, as the context in which the statements were made was relevant to the applicability of the defences. The High Court granted leave to appeal and allowed the appeal, holding that the lower court's decision to strike out the defences was incorrect.

Consequently, the High Court quashed the decision of the lower court and remitted the matter back for further proceedings, allowing IG Index to pursue its comment/fair comment defences. The court held that the lower court had failed to properly consider the context and the nature of the comment/fair comment defences, which led to an incorrect dismissal of the defences. The final orders of the High Court were that the appeal be allowed, the decision of the lower court be quashed, and the matter be remitted back for further consideration in light of the High Court's findings.

Orders