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 2004JURISDICTION:
Common Law Defamation ListJUDGMENT 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 1974CASES 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 52,010PARTIES :
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 GlassonSOLICITORS: (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…
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- Case
- [2004] NSWSC 140
- Decision Date
CaseChat Overview and Summary
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.
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