O'Shaughnessy v Mirror Newspapers Ltd - [1970] HCA 52

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

O'SHAUGHNESSY v. MIRROR NEWSPAPERS LTD.

(1970) 125 CLR 166

9 December 1970

Defamation

Defamation—Fact or comment—Fair comment on a matter of public interest—Criticism of a stage performance—" Dishonesty" of production—Defamation Act, 1958 (N.S.W.), ss. 2, 15(f) and (g).

Decisions

The following written judgments were delivered:-
BARWICK C.J., McTIERNAN, MENZIES AND OWEN JJ. This is an appeal by special leave from an order of the Court of Appeal of the Supreme Court of New South Wales (1970) 91 WN (NSW) 738 dismissing an appeal from a verdict and judgment for the defendant (the present respondent) in an action brought by the present appellant seeking damages for libel. (at p172)

2. The libel alleged was the publication in The Australian of a criticism of a performance of "Othello" sponsored by the Arts Council of Australia (N.S.W.) Division which was directed by the plaintiff and in which the plaintiff played the part of Othello. (at p172)

3. The criticism was called "What A Tragedy" and was written by Katharine Brisbane. The substance of the article was that the plaintiff, having at his disposal as good a group of players as Australia could produce, wasted their talents in a dishonest production devoted to enhancing his own role at the expense of those of the rest of the cast. A few extracts illustrate this.

"Stupidity and lack of talent are forgivable; brave failures are deserving of praise - these are every-day human failings. But the waste and dishonesty of this production, or rather recitation, make me very angry indeed." "I suspect the liveliness of John Norman's athletic, romantic Cassio and the lifelessness of Rob Inglis' Iago had something to do with the fact that Othello is seldom on stage with the former and almost always with the latter. Mr. Inglis' Iago is most elaborately boring. Mr. O'Shaughnessy in his programme note 'flatly rejects' the Leavis view that Iago is 'not much more than a necessary piece of dramatic mechanism' but that is exactly what he makes of Mr. Inglis." "In short the performance is a disaster which has all the makings of a fine production. All it needs is a producer with a little humanity, who understands that the actors on stage are people and the audience are people too. As it was the only fellow feeling I had with the stage on Tuesday was with Miss Thody's" (Desdemona) "expression at curtain-call. She looked as if she had had enough for one evening, and so had I." (at p172)

4. At the trial the learned trial judge ruled that, as a matter of law -

". . . the whole of this alleged defamatory matter, the whole of this article . . . is comment and comment upon the production of this Shakespearian play Othello by the plaintiff."

No doubt his Honour so ruled because he regarded the criticism as doing no more than expressing the critic's own evaluation of the production. In…

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: [1970] HCA 52
Decision Date: 9 December 1970

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *O'Shaughnessy v Mirror Newspapers Ltd*. The appellant, O'Shaughnessy, had brought an action against the respondent, Mirror Newspapers Ltd, for defamation. The dispute concerned the publication of an article by the respondent which the appellant alleged was defamatory of him.

The central legal issue before the High Court was whether the defence of justification was available to the respondent in relation to the defamatory imputations contained in the published article. Specifically, the court had to determine if the respondent had proven the truth of the statements made about the appellant.

The High Court, in a majority decision, found that the defence of justification had not been made out. The judges considered the evidence presented and concluded that the respondent had failed to establish the truth of the defamatory imputations. The principles of defamation law, particularly the onus of proof on a defendant relying on justification, were applied. The court held that the respondent had not discharged this onus.

The appeal was allowed, and the judgment of the court below was set aside. The High Court ordered that judgment be entered for the appellant, with damages to be assessed.

Orders