O'Shane v Fairfax Publications Pty Ltd
[2002] NSWSC 807
•11 September 2002
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 SCR Pt 67 r 18(2) the following:
- “…(2) to the extent to which it is to the same effect and purport as the matter complained of, the fact that the plaintiff has received, or agreed to receive, compensation for defamation in respect of another publication, namely, in proceedings brought against 2KY and the NSW Police Association which were settled on or about 19 November 1997”.
4 S48 of the Defamation Act is as follows:
In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff:
(a) has already recovered damages,
(c) has received or agreed to receive compensation, for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings .(b) has brought proceedings for damages, or
5 For the plaintiff it is conceded that the defamation in the 2KY action is in respect of another publication of matter to the same purport or effect as the matter the subject of the present proceedings.
6 It is to be taken that the plaintiff in her list of documents has discovered no material relating to the matter raised in paragraph (2) of the defendant’s particulars in mitigation of damages.
7 The defendant accordingly seeks an order pursuant to SCR Pt 23 r 3.
8 It is desirable to review the function and purpose of s48.
9 Section 48 reproduces the substance of s 24 of the 1958 Defamation Act which provision was the subject of consideration in Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223. In that case (in which liability was admitted) the full court was concerned with directions given to the jury by the trial judge and at 229 Herron CJ said:
“At the trial evidence was admitted of a copy of an issue of the Sunday Telegraph, also dated 10 February 1963, which is to the same purport as the articles sued upon, even though not in identical terms. The jury were also informed, as the fact was, that the respondent had recovered a verdict against Australian Consolidated Press Ltd, the publishers of the Sunday Telegraph for £15,000 in respect of the article in question. They were also told that an appeal was pending. His Honour rejected questions designed to show on what basis the former jury may have computed the damages. The appellant submits that, as to this, his Honour was in error and that he should have allowed evidence to be given that the respondent alleged malice against the defendant arising out of its conduct in the former action and that the former jury were not informed of the action brought against the present appellant.
In my opinion his Honour was in no error in confining the issue as to s 24 as he did. The section is a difficult one to apply and more difficult still to explain to a jury. Its exact application in a given case is not easy even to a lawyer. One thing is clear to my mind and that is, that it is better to put the matter before the jury in general terms and not to make the difficult subject more complex still by attempting to speculate on possible considerations which could explain the first verdict. To explain the perspective of the former verdict is difficult enough without inviting the second jury to retry the issues of another action. The purpose of the section was correctly explained to the jury. They were directed in effect that the defendant must answer fully in damages to the extent that its publication has brought about damage to reputation, but for the damage solely caused by its publication. There may be an area where damage is suffered by the joint operation of two different libels. The section is designed to permit evidence to be given with the object of preventing a plaintiff receiving double compensation for that sort of damage. His Honour read to the jury the following passage from the speech of Lord Reid, delivered in the House of Lords in 1963, in the case of Lewis v Daily Telegraph Ltd [1964] AC 254 at 261. “In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment.”
Lord Reid had prefaced this passage by the following statement: “Here there were similar libels published in two national newspapers on the same day and each has to be dealt with by a different jury. If each jury were to award damages without regard to the fact that the plaintiffs are also entitled to damages against the other newspaper, the aggregate of the damages in the two actions would almost certainly be too large. Section 12 of the Defamation Act 1952, is intended to deal with that” ”.
10 Walsh J agreed with the Chief Justice as did Wallace J though not as to the issue of the jury being informed as to the amount.
11 The Law Reform Commission in its commentary on what became s 48 of the present Act, having referred to the many problems raised and the discussion in Uren's case remarked (LRC 11 p 120 para 246]:
“However, short of some such solution as the Draconian one of imposing a very short limitation period and giving a right to consolidation of actions, no alteration of the provision has commended itself to us. The Draconian solution would itself produce many difficulties. We think that the best thing is simply to retain the substance of the present section”.
12 The above (paragraphs 9 -11) reproduces what I said in Harris v Perkins, 1 April 1993 [1993] A Def R 42,537.
13 On 16 June 1993 the High Court handed down its judgment in Carson v John Fairfax & Anor (1992-3) 178 CLR 44. In the course of his judgment, by which his Honour dissented from the decision of the High Court, McHugh J, in the context of considering the structure of the New South Wales Defamation Act of 1974 said as follows (at 99-100):
“Damages are awarded for the harm caused by a publication (s.46). The reasonableness of the verdict in respect of that publication can only be determined by reference to the harm which it has caused the plaintiff. In assessing damages in respect of a defamatory publication, a New South Wales jury is required to consider the effect of another defamatory publication only when the other publication is of "the same purport or effect" as the first publication (s.48).
In New South Wales, as in some other jurisdictions, however, the rigour of this common law rule has been qualified. Section 48 of the Act provides that evidence is admissible in mitigation of damages if the plaintiff has already recovered or brought proceedings for damages or has received or agreed to receive compensation "for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of". So, if a plaintiff is defamed on fifty-two successive weeks and brings a defamation action against any person, evidence is admissible in mitigation of damages that the plaintiff has already recovered or seeks to recover damages or compensation in respect of any of the other fifty-two articles "to the same purport or effect as the matter complained of". Consequently, the reasonableness of a verdict in respect of a defamatory publication must be assessed in the light of the evidence concerning that publication including any evidence which was admitted in mitigation of damages in respect of that publication. It is erroneous to consider the reasonableness of a verdict by determining whether the total sum awarded for a number of verdicts is reasonable. Each verdict must be considered separately. Except as provided for in s.48, absent evidence of a generally bad reputation at the time of the defamatory publication, damages are to be assessed in accordance with the common law rule that the plaintiff was a person of good reputation whose damages are not to be reduced by reason of any other publication”.The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff's reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff's reputation at that time. But it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation.
14 His Honour made reference principally, in the course of this discussion, to Dingle v Associated Newspapers Ltd [1964] AC 371.
15 Miles CJ had occasion to consider an equivalent provision in s7 of the Defamation (Amendment) Act, 1909 of the ACT in Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR 14. To this decision I will return shortly, however, his Honour remarked, having referred to the decision of Uren:
- “All that can be gleaned, with respect, is that the section is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation and whilst requiring the defendant to answer fully in damages to the extent that its publication has brought about damage to reputation, to restrict those damages to the injury caused by the publication by the defendant sued upon by the plaintiff”. (at 24.20)
16 Thus it can be observed that the purpose of s48, to put it very simply, is to prevent the plaintiff being doubly compensated. The following, also, can be observed about the section: first, that it enacts that evidence on the relevant subject is “admissible on the behalf of the defendant”. Second, the section contains no limitation in terms of the timing of “any other publication”. The limitation expressed in the section relates to matters to the same purport or effect as the matter complained of in the subject action.
17 For the respondent/plaintiff, noting that the 2KY proceedings were commenced on 15 September 1994 and settled on terms not to be disclosed in 1997, Mr Weaver argued, even taking into account the language of the section and what is not stated in it in terms of temporal limitation, that there was no possibility of a trial judge giving any weight to the defendant’s case in mitigation under the section. The time lapse between the two publications is “too long” whether it is measured in terms of the five years between the dates of publication or whether time begins to run from whatever vindication the plaintiff attained by the settlement on 1997 of the 2KY claim. As it was put, it could well be the case that any damage to the plaintiff’s reputation occasioned by the 2KY publication had been “repaired” by the time of the publication now being sued upon.
18 Support for these propositions was sought to be gained from observations by Miles CJ in Thompson. What his Honour said by way of conclusions and findings in the context of the case he was hearing was:
- “I am unable to see why the proceedings against Channel 10 for the defamatory broadcast on 13 August 1985 and the subject of a consent judgment need to be taken into account at all. It was not the case of a re-publication by Channel 10 of the matter complained of and broadcast on 21 February 1984. I have read a transcript of the broadcast by Channel 10 and it is not necessary to set it out in these reasons. The Channel 10 broadcast was a completely independent interview by another presenter with the same complainant and a second complainant. It is true that the allegations of incest made by the complainant against the plaintiff are similar, it may also be true that had the action against Channel 10 gone to trial, the defendant could have relied in mitigation on a reputation already damaged by Channel 7, but the converse cannot be the case. Having regard to the lapse of time between the Channel 7 broadcast and the Channel 10 broadcast, the differences in the identity of the
personnel involved in the broadcast and the lack of evidence to show overlapping of harm to reputation or damage to feelings, or both, I do not consider Channel 10 to be a concurrent, several, or joint tortfeasor, let alone a joint tortfeasor with Channel 7. Nor do I think that, for the purposes of s.7 of the Defamation (Amendment) Act, the amount received by the plaintiff from Channel 10 is compensation in respect of a libel to the same purport or effect as the libel published by Channel 7. In other words, I do not think that the amount received from Channel 10 is to be taken into account either as prior payment in satisfaction by a concurrent tortfeasor or in mitigation of damages under the Defamation (Amendment) Act”. (at 25.25 -.50)
19 What his Honour there said is of no assistance to the plaintiff/respondent. First, of course, his Honour was concerned not merely with the operation of s7 of the ACT legislation but with its operation in the context of claims between joint tortfeasors and questions of contribution. Secondly, and more importantly, his Honour was making findings of fact on evidence which had been admitted on this issue in the proceedings before him. Here I am concerned with any requirement for further discovery.
20 For the defendant/applicant Mr Nicholas QC argued that s48 “predetermines relevance” by reason of it stating that the evidence is “admissible” and that in the end it will be a question of “weight” for the trial judge. I agree that the issues as advanced by Mr Weaver are trial issues and not issues that go to the defendant’s entitlement to have the plaintiff give further discovery. It may well be that at trial, notwithstanding the provisions of s48 as to “admissibility”, the operation of s55(1) of the Evidence Act, 1995 and whether or not the tendered material is in accordance with that section “relevant”, may be the subject of consideration.
21 The defendant has properly particularised a case it proposes to make in mitigation of damages. In relation to that particularised case it is conceded by the plaintiff that the 2KY publications were to the same “purport or effect”, and (in written submissions) that the 2KY proceedings arose from criticism of the plaintiff in her role as Magistrate and that those proceedings were based on imputations touching on bias and abuse of position.
22 As I have said the defendant has raised, pursuant to s48, an issue between it and the plaintiff going to the extent of any entitlement in the plaintiff going to an award of damages. The section provides no time limitation and sufficient particulars have been provided under SCR Pt 67 r 8(2). Questions of admissibility, relevance and weight are matters for the trial. Any issues arising under those headings will be determined at trial and cannot be determined on an application for an order under SCR Pt 23. Nothing that has been advanced for the plaintiff, especially in the context of the concessions made, has persuaded me that the defendant is not entitled to the relief it seeks.
23 In the course of his oral submissions Mr Weaver said that in the event that I was to find in favour of the respondent/plaintiff the relevant particulars in mitigation of damages should be struck out. This I will decline to do.
24 The orders are:
1. The application by the respondent/plaintiff to have particular (2) of the particulars under SCR Pt 67 r 18(2) struck out is refused.
2. I order the respondent/plaintiff to deliver a verified list of documents within 21 days thereby giving discovery with respect to the issues raised in paragraph (2) of the particulars appended to the Amended Defence under SCR Pt 67 r 18(2).
4. I place the matter in the Registrar’s Defamation Directions list on 11 October 2002.3. The plaintiff is to pay the defendant’s costs.
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