O'Shane v John Fairfax Publications Ltd - [2004] NSWSC 140

Reported Decision:
(2004) Aust Torts Reports 81-733

Supreme Court

CITATION: O'Shane v John Fairfax Publications Ltd [2004] NSWSC 140

HEARING DATE(S): 16, 17, 18, 19, 23, 24 June 2003

JUDGMENT DATE:
16 March 2004

JURISDICTION:
Common Law Defamation List

JUDGMENT OF: Smart AJ at 1

DECISION: See paras 245-246

CATCHWORDS: Was material complained of Fact or Comment - Serious imputations found - Defence of Comment - whether article based on proper material for comment - whether author of article was agent of defendant or a stranger - Availability of defence of qualified privilege at common law as extended by Lange and by statute - publication of material complained of not reasonable - factors underlying assessment of damages - aggravated damages - no malice.

LEGISLATION CITED: Crimes Act 1900 s 29, s 33A
Defamation Act 1974

CASES CITED: Australian Capital Television
Broome v Cassels & Co Ltd [1972] AC 1027 at 1071
Carleton v Australian Broadcasting Corporation [2002] ACT 127.
Clarke v Norton [1910] VLR 494 at 499
Crampton v Nugawela (1996) 41 NSWLR 176 at 193
Cunliffe v The Commonwealth (1993-94) 182 CLR Toohey J at 379
Derbyshire County Council v Times Newspapers Ltd [1993] AC at 547?8
Hunt v Star Newspaper [1908] 2 KB 309 at 319-320
John Fairfax Publications Pty Ltd v Attorney-General
(2000) 181 ALR 694
Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 and (1991) 23 NSWLR 374
Nationwide News Pty Ltd v Wills (1992) 177 CLR at 74
Popovic v Herald & Weekly Times [2002] VSC 174
R v Nicholls (1911) 12 CLR 280 at 285 and 282-3
Sims v Wran, 1984 1 NSWLR 317 at 322
Smith v Harris [1995] A Def R [52055] at 43,870
Stephens v West Australian Newspapers Ltd (1992) 177 CLR 1
Telnikoff v Matusevitch [1992] 2 AC 343 at 352.
Theopanous v Herald & Weekly Times Ltd (1993-94) 182 CLR at 124
Williams v John Fairfax & Sons Ltd (1994) A Def R 52,010

PARTIES :
Patricia June O'Shane v John Fairfax Publications Pty Limited

FILE NUMBER(S): SC 20527/00

COUNSEL: (P) B McClintock SC & R Weaver
(D) B Walker SC & R Glasson

SOLICITORS: (A) Aitken McLachlan Thorpe
(D) Freehills

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Tuesday, 16 March 2004

SMART AJ:

JUDGMENT

1. Patricia June O'Shane sues John Fairfax Publications Pty Limited for damages for defamation arising out of the publication of an article written by Janet Albrechsten in the Sydney Morning Herald on Thursday 16 December 1999 in the following terms, the paragraphs having been numbered for convenience of reference,:

EXTREME VIEWS FROM THE BENCH

1. The decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O'Shane suggests that it may be time to reflect, more generally, on some of the controversy surrounding O'Shane

2. As a magistrate, O'Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from…

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: [2004] NSWSC 140
Decision Date: 16 March 2004

CaseChat Overview and Summary

In the Federal Court of Australia, O'Shane sued John Fairfax Publications Ltd over an article published in The Sydney Morning Herald. The article suggested O'Shane had acted improperly in his role as a lawyer, prompting legal action over alleged defamation. The court had to decide if the content was factual or comment, whether it conveyed serious imputations, and if the defence of comment was applicable. It also needed to determine if the article's author was an agent of the defendant and if the defence of qualified privilege was available, both at common law and under statutory provisions. The court further assessed whether the publication was reasonable and considered factors for evaluating damages, including aggravated damages and the absence of malice.

The court found the article contained serious imputations, but it was also comment. The article's author was deemed an agent of the defendant, and the defence of qualified privilege was examined. The court held that the publication was not reasonable, as it failed to verify the information before releasing it. In assessing damages, the court considered factors such as the harm to reputation and the absence of malice, which impacted the quantum of aggravated damages awarded.

The Federal Court held that the defendant was liable for defamation. It found the publication unreasonable and awarded damages to the plaintiff. The court ruled that the defendant was liable for the defamatory content published, and the plaintiff was entitled to compensation. The specific amount of damages was determined, reflecting the harm to O'Shane's reputation and the absence of malice on the part of the defendant. The court's decision underscored the importance of verifying information before publication and the consequences of failing to do so.

Orders