O'Shane v Fairfax Publications Pty Ltd - [2002] NSWSC 807

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
(Plaintiff)
W Nicholas QC
(Defendant)

SOLICITORS:
Aitken McLachlan & Thorpe
(Planitiff)
Freehills
(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) 223

DECISION: See paragraph 24

DLJ: 1

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
defamation list

JUSTICE DAVID LEVINE

WEDNESDAY 11 SEPTEMBER 2002

20527 OF 2000

PATRICIA JUNE O’SHANE
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LTD
(ACN 003 357 720)
(Defendant)

JUDGMENT (Defamation Act 1974 – s48 – mitigation of damages – case particularised as to another action on publication to same purport or effect – requirement for discovery)

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…

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.

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Details

Case: [2002] NSWSC 807
Decision Date: 11 September 2002

CaseChat Overview and Summary

In the Federal Court of Australia, the case of O'Shane v Fairfax Publications Pty Ltd involved a dispute concerning the publication of defamatory material. The plaintiff, Mr O'Shane, alleged that the defendant, Fairfax Publications, published articles that defamed him. The legal issues before the court focused on whether the plaintiff was required to particularise a case in another action on the same publication to the same purport or effect before being granted discovery of documents under section 48 of the Defamation Act 1974. The court had to determine the extent to which the plaintiff must particularise their case in another action before being entitled to seek discovery.

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.

Orders