FEDERAL COURT OF AUSTRALIA
Nixon v Slater & Gordon [2000] FCA 531
DEFAMATION – libel – whether a claim of professional malpractice conveys the imputation that the claim is for reasonable cause or is made on reasonable grounds – whether the publication sufficiently identified the applicants - consideration of principles applicable to estimating general damages for injury to professional reputation
TRADE PRACTICES – misleading and deceptive conduct – whether promotional booklet is “in trade or commerce” - whether damages to reputation is recoverable as loss and damage for misleading and deceptive conduct
Trade Practices Act 1974 (Cth) ss 52 and 82
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 – applied
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 – applied
Global Sportsman Pty Ltd v Mirror Newspaper Ltd (1984) 55 ALR 25 – applied
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 – applied
Lewis v Daily Telegraph Ltd (1963) 1 QB 340 – considered
Lewis v Daily Telegraph Ltd (1964) AC 234 – applied
Chakravarti v Advertiser Newspapers (1998) CLR 519 – cited
Tolley v J.S. Fry & Sons Ltd [1931] AC 333 – cited
Mapp v News Group Newspapers Ltd [1998] Q.B. 520 – cited
Shah v Standard Chartered Bank [1999] QB 241 – cited
Honey v Australian Airlines (1989) ATPR 40-961 – cited
Morgan v Odhams Press Ltd (1971) 2 All ER 1156 – applied
David Syme & Co v Canavan (1918) 25 CLR 234 - cited
Andrews v John Fairfax & Son Ltd (1980) 2 NSWLR 225 - cited
Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 – cited
World Hosts Pty Ltd v Mirror Newspapers Ltd (1978) 1 NSWLR 189 – cited
Raul Amon International Pty Ltd v Telstra Corporation Ltd – [1998] 4 VR 798 - cited
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 – considered
Crampton v Nugawela (1996) 41 NSWLR 176 – considered
Broome v Cassell & Co [1972] AC 1027 – considered
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 – cited
Brabazon v Western Mail Ltd (1985) 58 ALR 712 – considered
Acohs v RA Bashford (1997) 144 ALR 528 - consideredIAN NIXON AND GREGORY ELLIS v SLATER & GORDON
VG 468 OF 1999JUDGE: MERKEL J
DATE: 28 APRIL 2000
PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 468 of 1999
BETWEEN:
IAN NIXON
FIRST APPLICANTGREGORY ELLIS
SECOND APPLICANTAND:
SLATER & GORDON
RESPONDENTJUDGE:
MERKEL J
DATE OF ORDER:
28 APRIL 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The respondent pay damages in the sum of $200,000 to the first applicant.
2. The respondent pay damages in the sum of $100,000 to the second applicant.
3. The respondent be restrained from publishing or distributing the booklet described in paragraph 4 of the Amended Statement of Claim in any form that uses the photograph of the applicants described in the particulars to that paragraph.
4.…
Continue reading Nixon v Slater & Gordon
Sign in free to access the full text
- AGLC
- Nixon v Slater & Gordon [2000] FCA 531
- Case
- [2000] FCA 531
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether Slater & Gordon's publication of the booklet was defamatory, and whether it constituted a contravention of section 52 of the TPA. The applicants argued that the publication implied that they were involved in medical malpractice claims, which was false and damaging to their reputation. They also argued that the publication was misleading, as it gave the impression that they had consented to their photograph being used in the booklet. The court had to determine whether the publication was capable of bearing the defamatory meaning imputed to it by the applicants, and whether it was misleading or likely to mislead.
The court found that the publication was capable of bearing the defamatory meaning imputed to it by the applicants, and that it was misleading. The court held that the cover photograph of the applicants in surgical dress, under the caption "Medical malpractice claims...A litigation explosion?", implied that they were the subject of medical malpractice claims, which was false and defamatory. The court also held that the publication was misleading, as it gave the impression that the applicants had consented to their photograph being used in the booklet. The court found that Slater & Gordon had contravened section 52 of the TPA by publishing misleading or deceptive conduct in trade or commerce.
The court awarded damages to the applicants in the sum of $200,000 to Mr Nixon and $100,000 to Dr Ellis. The court also restrained Slater & Gordon from publishing or distributing the booklet in any form that used the photograph of the applicants, and ordered Slater & Gordon to send a letter of retraction to each of the medical practitioners who had received the booklet. The court held that the applicants were entitled to injunctive relief, as the publication had caused them damage to their reputation and professional repute. The court also ordered Slater & Gordon to pay the applicants' costs of and incidental to the proceeding.
In conclusion, the court found that Slater & Gordon had defamed the applicants and contravened section 52 of the TPA by publishing misleading or deceptive conduct in trade or commerce. The court awarded damages to the applicants and restrained Slater & Gordon from further publication of the booklet. The court also ordered Slater & Gordon to send a letter of retraction to each of the medical practitioners who had received the booklet. The applicants were also entitled to be paid their taxed costs of and incidental to the proceeding.
Orders
Orders of the court
1. The respondent pay damages in the sum of $200,000 to the first applicant.
2. The respondent pay damages in the sum of $100,000 to the second applicant.
3. The respondent be restrained from publishing or distributing the booklet described in paragraph 4 of the Amended Statement of Claim in any form that uses the photograph of the applicants described in the particulars to that paragraph.
4. Within 14 days from the date hereof the respondent, at its own expense, send by ordinary prepaid letter post the letter of retraction annexed as the Schedule to the order to each of the medical practitioners identified in Exhibit “AR 2” to the affidavit of Adam Gerhard Rollnik sworn on 7 April 2000.
5. The respondent pay the applicants’ costs of and incidental to the proceeding.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.