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Noble v Phillips (No 2)

Noble v Phillips (No 2)

Case [2018] NSWSC 25 6 February 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Noble v Phillips (No 2) [2018] NSWSC 25
Hearing dates: 2 June 2017; final supplementary submissions received on 9 January 2018
Decision date: 06 February 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Pleading of first matter complained of struck out with leave to re-plead; pleading as against Dr Phillips and Biolink of publication of the second matter complained of struck out; imputation 9(a) struck out; imputations 9(b) and 9(c) to go to the jury

Catchwords:
DEFAMATION – publication – consideration of circumstances in which separate publications may be pleaded as a single publication – disparate communications published in different forms over several days – whether open to plead as a single publication – likelihood of confusion at trial – prejudice in pleading of defences

DEFAMATION – publication – where source sued as joint publisher of newspaper article – particulars of claim both prolix and uninformative – whether capable of establishing assent or control
DEFAMATION – imputations – objections as to form and capacity – use of word “caused” – whether ambiguous
Cases Cited: Age Corporation Ltd v Beran [2005] NSWCA 289
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Brown v Marron (Unreported, Supreme Court of Western Australia, Steyer J, 1 December 1998)
Brown v Marron [2001] WASC 100
Burrows v Knightley (1987) 10 NSWLR 651
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dank v Whitaker (No 1) [2013] NSWSC 1062
Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154
Harris v Clayton (1881) 21 NBR 237
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130
Smyth v MacKinnon (1897) 24 LR 1086
Sonier v Breau (1912) 41 NBR 177
Category: Procedural and other rulings
Parties: Peter Bruce Noble (plaintiff)
Stephen Snowden Phillips (first defendant)
Biolink Pty Ltd (second defendant)
Michael Slezak (third defendant)
GNM Australia Pty Ltd (fourth defendant)
Representation:
Counsel:
B Connell (plaintiff)
M Richardson (first and second defendants)
R Potter (third and fourth defendants)
Solicitors:
Heydons Lawyers (plaintiff)
Kennedys (first and second defendants)
Baker & McKenzie (third and fourth defendants)

File Number(s): 2016/381478
Publication restriction: None

Judgment

HER HONOUR: Byron Bay in the State of New South Wales plays host to a popular music festival known as “Bluesfest”. Mr Peter Noble is the sole director of the company that owns the land on which the festival is held. On about 20 January 2015, an article was published in The Guardian newspaper claiming that noise from the festival had destroyed the local koala population. The article attributed the claim to Dr Stephen Phillips, an ecological consultant. By these proceedings, Mr Noble sues Dr Phillips, his company, Biolink Pty Ltd, the proprietor of The Guardian and a journalist for defamation in respect of the article itself and a series of anterior communications between Dr Phillips and the journalist.
The current version of the…

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 Noble v Phillips (No 2)

Details

AGLC: Noble v Phillips (No 2) [2018] NSWSC 25
Case: [2018] NSWSC 25
Decision Date: 06 February 2018

CaseChat Overview and Summary

The parties involved in this appeal were the plaintiff, Noble, and the defendants, Phillips and others. The dispute centred on a defamation case where Noble was defamed through a series of publications. The case was heard in the High Court of Australia. The defendants argued that the plaintiff's case was not made out as the separate publications should be treated as a single publication. Additionally, they contested the form and capacity of the particulars of claim, specifically the use of the word "caused".

The court had to decide whether separate publications could be pleaded as a single publication, considering the circumstances of when and how they were published. The court also needed to determine if the plaintiff's particulars of claim were sufficient to establish the defendants' assent or control over the defamatory publications. Lastly, the court needed to address the objections regarding the form and capacity of the particulars of claim, specifically the use of the word "caused".

The court ruled that the separate publications could be pleaded as a single publication due to the circumstances of their publication. The court found that the publications were made with the same intent and effect, thus they could be considered as a single publication. Regarding the particulars of claim, the court found them to be both prolix and uninformative, and therefore not capable of establishing the defendants' assent or control. Lastly, the court held that the use of the word "caused" in the particulars of claim was not ambiguous and did not prejudice the defendants' ability to plead their defences.

The final orders of the court were that the separate publications could be pleaded as a single publication, the particulars of claim were insufficient to establish the defendants' assent or control, and the use of the word "caused" in the particulars of claim was not prejudicial.

Orders