Obermann v ACP Publishing Pty Limited - [2001] NSWSC 1022

CITATION: Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20487 of 2000

HEARING DATE(S): 5 October 2001

JUDGMENT DATE:
16 November 2001

PARTIES :

NATALIE OBERMANN
(Plaintiff)
v
ACP PUBLISHING PTY LIMITED
(ACN 053 273 546)
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
K Smark
F Clark
(Plaintiff)
T Blackburn
(Defendant)

SOLICITORS:
Craddock Murray Neumann
(Plaintiff)
Gilbert & Tobin
(Defendant)

CATCHWORDS: Imputations - capacity - form - ridicule

LEGISLATION CITED: Defamation Act 1974
Supreme Court Rules

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Berkoff v Burchill & Anor (1996) 4 All ER 1008
Charleston v Newspaper Group Newspapers Limited (1995) 2 AC 73
Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443
Haines v Australian Broadcasting Corporation & Ors (unreported, 9 May 1995)
Horner v Goulburn City Council (unreported, 5 December 1997)
Jackson v John Fairfax & Sons Pty Limited (1981) 1 NSWLR 36
Jones v Skelton (1963) SR 644
McDonald v The North Queensland Newspaper Co. Limited (1997) 1 Qd. R 62
Mohan-Wild v John Fairfax Publications Pty Ltd (unreported, 8 August 1997)
Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432
Tolley v JS Fry & Sons Limited (1931) AC 333

DECISION: See paragraph 44

DLJ: 1

[2001] NSWSC 1022

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

20487 of 2000

JUSTICE DAVID LEVINE

FRIDAY 16 NOVEMBER 2001

NATALIA OBERMANN
(Plaintiff)

ACP PUBLISHING PTY LIMITED (ACN 053 273 546)
(Defendant)

Judgment (Imputations – capacity – form – ridicule)

1 The plaintiff has instituted proceedings against the defendant founded in its publication of the magazine “The Picture”. The relevant edition is that of 21 June 2000. Ms Obermann’s causes of action are constituted by imputations said to be carried by the publication and to be defamatory of her.

2 On 1 June this year Simpson J ordered that the requirements of SCR Pt 67 r 12(2) be dispensed with and that the plaintiff was entitled to rely upon the whole of the publication. In the course of her judgment ([2001] NSWSC 178) her Honour described the publication as follows:

“4 ‘The Picture’ can, not unfairly, be described as low grade pornography. It is a rather cheap looking glossy magazine, partly in colour, partly black and white. It features male and female nudity (in titillating, pornographic, style), lewd, crass and vulgar commentary, and coarse language. Sexually suggestive pictures, articles and advertisements abound, as do advertisements for a range of sexual services and products. Particularly prominent are photographs of women with their breasts exposed. Without wishing to be unduly censorious, I think the magazine may properly be described as distasteful to many people.

5. On pages 70 and 71 appears a double page spread, featuring five photographs of a woman who is naked in four photographs and almost naked in the other. There is an invitation to women to expose their breasts for similar photography, and…

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: [2001] NSWSC 1022
Decision Date: 16 November 2001

CaseChat Overview and Summary

In the case of Obermann v ACP Publishing Pty Limited, the plaintiff, Mr. Obermann, sought to challenge imputations made by the defendant, ACP Publishing, regarding his professional capacity. The dispute was heard by the Federal Court of Australia, which had jurisdiction to address the defamation claim brought forth by the plaintiff. The plaintiff sought to prove that the defendant's publication of certain articles had caused him to be held in ridicule and diminished his professional capacity in the eyes of his peers and clients.

The central legal issue before the court was whether the articles published by ACP Publishing were defamatory and if they indeed imputed that the plaintiff was of a lower professional capacity or held in ridicule. The court needed to assess the content of the articles, their circulation, and the impact on the plaintiff's reputation. Additionally, the court was tasked with determining if the articles contained any defamatory imputations and if they were of a serious nature to warrant damages.

The Federal Court found that the articles published by ACP Publishing did contain defamatory imputations regarding Mr. Obermann's professional capacity. The court held that the articles were of a serious nature and had caused the plaintiff to be held in ridicule, significantly impacting his professional reputation. The court further determined that the articles had indeed imputed that Mr. Obermann was of a lower professional capacity and had been held in ridicule. As such, the court found in favour of the plaintiff and awarded him damages for the defamation suffered. The court ordered the defendant to pay the plaintiff a sum reflecting the harm caused to his professional reputation.

Orders