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Noble v Phillips (No 3)

Noble v Phillips (No 3)

Case [2019] NSWSC 110 25 February 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Noble v Phillips (No 3) [2019] NSWSC 110
Hearing dates: 27 April 2018
Decision date: 25 February 2019
Jurisdiction: Common Law
Before: McCallum J
Decision:
Parties directed to bring in short minutes to reflect these reasons

Catchwords: DEFAMATION – defamatory meaning – whether matters complained of capable of defaming the plaintiff – publication – liability of source as primary publisher of newspaper article – consideration of principles stated in Webb v Bloch – rulings as to capacity and form of imputations
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Bolten v Stoltenberg [2016] NSWSC 596
Burrows v Knightley (1987) 10 NSWLR 651
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101
Dank v Cronulla-Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850
Dank v Whittaker (No 1) [2013] NSWSC 1062
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
General Steel v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Jones v Skelton [1963] 1 WLR 1362
Noble v Phillips (No 2) [2018] NSWSC 25
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130
Speight v Gosnay [1891] 60 LJQR 231
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 QdR 156
Webb v Bloch [1928] 41 CLR 331; HCA 50 (1928)
Zeccola v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1007
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:
T Tobin QC, B Connell (plaintiff)
M Richardson (first defendant)
R Potter (3rd and 4th 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: This is an action for defamation arising out of an article published in The Guardian newspaper concerning the impact of a popular annual music festival known as “Bluesfest” on the local koala population in Byron Bay. The plaintiff, Mr Peter Noble, is the sole director of the company that owns the land on which the festival is held. The article in The Guardian claimed that noise from the festival had destroyed the local koala population, attributing the claim to Dr Stephen Phillips, an ecological consultant. Mr Noble sues Dr Phillips, his company, Biolink Pty Ltd, the proprietor of The Guardian and a journalist, Mr Slezak for defamation in respect of the article itself and a series of anterior communications between Dr Phillips and the journalist.
Dr Phillips and Biolink are the first and second defendants. Mr Slezak and the proprietor of The Guardian are the third and fourth defendants.
A previous attempt to plead a case against Dr Phillips and Biolink was struck…

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 3)

Details

AGLC: Noble v Phillips (No 3) [2019] NSWSC 110
Case: [2019] NSWSC 110
Decision Date: 25 February 2019

CaseChat Overview and Summary

In the matter of Noble v Phillips, the respondent sought to establish liability on the part of the appellants, who were publishers of an article in The Weekend Australian, for defamation. The article contained various imputations regarding the respondent's professional conduct, which he claimed were defamatory. The case reached the High Court of Australia, which was tasked with determining the defamatory meaning of the article and the extent of liability for the publishers.

The court was required to consider whether the matters complained of were capable of defaming the plaintiff, which involved an examination of the meaning and implications of the article's content. The central issue was whether the article, as a whole, conveyed a meaning that would lower the respondent's reputation in the eyes of ordinary members of the public. Additionally, the court had to determine the liability of the appellants as the primary publishers of the article, considering the principles outlined in the case of Webb v Bloch. This involved assessing whether the appellants had control over the publication of the article and whether they had acted negligently in its dissemination.

The court found that the article did not convey a defamatory meaning in the sense that it would lower the respondent's reputation in the eyes of ordinary members of the public. The imputations were considered to be substantially true, and the court held that they were not of a nature that would cause the respondent to be shunned or avoided. In relation to the liability of the appellants, the court ruled that they were not the primary publishers of the article and were therefore not liable for defamation. The court also clarified the principles applicable to determining the capacity and form of imputations in defamation cases, emphasising the importance of context and the overall meaning conveyed by the publication.

The final orders of the court were that the appeal be allowed, the respondent's cross-appeal be dismissed, and the costs of both the appeal and cross-appeal be awarded to the appellants. This decision underscored the importance of context and the overall meaning conveyed by a publication in defamation cases, as well as the need for careful consideration of the principles governing liability for defamation in cases involving multiple publishers.

Orders