Norton v Clarke

This matter concerned an application for leave to appeal to the High Court of Australia following a decision of the Supreme Court of Victoria. The original action was a defamation suit brought by the plaintiff, the Anglican Archbishop of Melbourne, against the defendant, a newspaper proprietor. The alleged libel concerned charges made by the plaintiff against a clergyman, Canon Nash, which the plaintiff purportedly knew were false. The defendant pleaded justification and fair comment.

The central legal issue before the Supreme Court, and subsequently the High Court on the application for leave to appeal, was whether a particular provided by the defendant in support of his plea of fair comment was properly struck out. This particular stated that Canon Nash was not guilty of the charges and that the plaintiff was aware of this fact. The plaintiff sought to have this particular removed, arguing it was not a proper basis for the fair comment defence.

The Supreme Court, upholding the decision of Cussen J., found that the particular should be struck out. The High Court, in refusing leave to appeal, agreed with the reasoning of the Supreme Court, particularly the judgment of à Beckett J. The Court concluded that the particular, as framed, went beyond what was reasonably required for the defence of fair comment. The Court indicated that the defence of justification might encompass the alleged knowledge of innocence, but this was distinct from the particulars required for fair comment.

Leave to appeal from the decision of the Supreme Court of Victoria was refused.