CITATION: O'SHANE v FAIRFAX PUBLICATIONS PTY LTD [2002] NSWSC 807 FILE NUMBER(S): SC 20527 OF 2000 HEARING DATE(S): 3 September 2002 JUDGMENT DATE: 11 September 2002 PARTIES :
PATRICIA JUNE O'SHANE
(Plaintiff)v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(ACN 003 357 720)
(Defendant)
JUDGMENT OF: Levine J
COUNSEL : R Weaver
W Nicholas QC
(Plaintiff)
(Defendant)SOLICITORS: Aitken McLachlan & Thorpe
Freehills
(Planitiff)
(Defendant)CATCHWORDS: Defamation Act 1974 - s48 - mitigation of damages - case particularised as to another action on publication to same purport or effect - requirement for discovery LEGISLATION CITED: Defamation Act 1974 CASES CITED: Carson v John Fairfax & Anor (1992-3) 178 CLR 44
Dingle v Associated Newspapers Ltd [1964] AC 371
Harris v Perkins, 1 April 1993 [1993] A Def R 42,537
Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR 14
Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223DECISION: See paragraph 24
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
defamation list
JUSTICE DAVID LEVINE
20527 OF 2000WEDNESDAY 11 SEPTEMBER 2002
PATRICIA JUNE O’SHANE
(Plaintiff)
JOHN FAIRFAX PUBLICATIONS PTY LTDv
(ACN 003 357 720)
(Defendant)
1 By Notice of Motion filed on 23 August 2002 the defendant seeks an order that the plaintiff give further discovery of documents relating to the issue raised in paragraph (2) of the particulars in mitigation of damages appended to the Amended Defence filed on 21 September 2001.
2 On 21 August 2001 a jury at a trial under s7A of the Defamation Act 1974 found that the relevant publication by the defendant carried the following defamatory imputations of the plaintiff:
- (a) The Plaintiff, when acting as a magistrate, is biased.
- (b) The Plaintiff is biased against police.
- (c) The Plaintiff, when acting as a magistrate, allowed an attitude of anger and bitterness to affect her judgment.
- (d) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them.
- (e) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed such charges were a habitual form of police harassment.
- (f) The Plaintiff, as a magistrate, is incompetent.
- (g) The Plaintiff, as a magistrate, undermines the judicial system.
- (h) The Plaintiff is unfit for her office as a magistrate because she allows her extreme views to affect her judgment.
3 By its Amended Defence the defendant has pleaded “comment” and “qualified privilege”. Relevantly, the defendant, pursuant to s48 of the Defamation Act has pleaded in mitigation of damages pursuant to…
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- Case
- [2002] NSWSC 807
- Decision Date
CaseChat Overview and Summary
The court considered the statutory language of section 48, which requires a plaintiff to case particularise another action on the publication to the same purport or effect. It was held that this requirement ensures that the plaintiff's case is sufficiently defined, which aids in the discovery process. The court concluded that the plaintiff needed to demonstrate a prima facie case in the other action to satisfy the requirement for discovery under section 48. The court also noted that the requirement was not intended to impose an undue burden on the plaintiff but to ensure that the discovery process was not unduly delayed or hindered by vague or unsubstantiated claims.
Ultimately, the court determined that the plaintiff had not sufficiently particularised his case in the other action to the required standard. Consequently, the plaintiff's application for discovery was dismissed. The court emphasised that the requirement for discovery under section 48 of the Defamation Act 1974 was necessary to maintain the balance between the right to freedom of expression and the protection of individuals from defamatory statements. The court's decision underscored the importance of particularising one's case in another action before seeking discovery of documents in defamation cases.
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