Obermann v ACP Publishing Pty Ltd - [2001] NSWSC 178

CITATION: Obermann v ACP Publishing Pty Ltd [2001] NSWSC 178

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20487/00

HEARING DATE(S): 9 March 2001

JUDGMENT DATE:
1 June 2001

PARTIES :

Natalie OBERMANN - Plaintiff
ACP PUBLISHING PTY LTD - Defendant

JUDGMENT OF: Simpson J

COUNSEL : M Lynch - Plaintiff
G Reynolds SC - Defendant

SOLICITORS: Craddock Murray Neumann - Plaintiff
Gilbert & Tobin - Defendant

LEGISLATION CITED: Defamation Act 1958

CASES CITED: Dougherty v Nationwide News Pty Limited (1968) 88 WN(NSW) 146
Burrows v Knightley (1987) 10 NSWLR 651
Lucas v John Fairfax Publications Pty Limited [2000] NSWSC 950 unreported, 13 October 2000
Rakhimov v John Fairfax Publications Pty Limited [2001] NSWSC11, unreported 25 January 2001
Keating v Newcastle Newspapers Pty Limited [2000] NSWSC 726 unreported 1 August 2000 per Kirby J
Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130 unreported 9 March 2001.
Sungravure Pty Ltd v Middle East Airlines Airlibian S.A.L. (1975) 134 CLR1
Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682
Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472
Cairns v John Faifax and Sons Limited [ 1983] 2 NSWLR 708
Ettingshausen v Australian Consolidated Press Limited (1991) 23 NSWLR 443

DECISION: The first matter complained of - dispensed with compliance with Part 67 Rule 12(2) and direct that the provision by the plaintiff of a copy of the magazine "The Picture" to the court and to the defendant is sufficient compliance with that Rule; decline to strike out the pleading of the first matter complained of; the true innuendo claim is adequately particularised in the circumstances; direct the plaintiff to provide particulars of the allegation contained in paragraph 9 of the statement of claim.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

1 June 2001

Natalie OBERMANN v ACP PUBLISHING PTY LTD

Judgment

HER HONOUR :

1 By statement of claim filed on 7 September 2000 the plaintiff, Natalie Obermann, claims against the defendant, ACP Publishing Pty Limited, in respect of defamatory imputations she alleges arise from the publication of an edition of a magazine called “the Picture”, issued on or about 21 June 2000.

2 For present purposes it may be assumed that the defendant is responsible for the publication of the magazine. In this application the defendant seeks orders relating to the manner in which the statement of claim has been pleaded.

3 It is now necessary to say a little about the publication, again assuming, for present purposes only, the accuracy of the allegations of fact made in the statement of claim.

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…

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.

Keep reading for free

Create a free CaseChat account to read Obermann v ACP Publishing Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWSC 178
Decision Date: 1 June 2001

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Natalie Obermann, the plaintiff, filed a defamation claim against ACP Publishing Pty Limited, the defendant, for defamatory imputations arising from the publication of an edition of the magazine "The Picture" on or about 21 June 2000. The plaintiff claimed that the magazine, which predominantly featured nudity, lewd commentary, and coarse language, defamed her by publishing photographs of her in a swimming costume that exposed her breasts with accompanying derogatory captions. The plaintiff pleaded her case in two ways: firstly, that the magazine as a whole in its natural and ordinary meaning conveyed defamatory imputations; and secondly, by way of true innuendo, that the magazine acquired a defamatory character by reference to additional parts of the magazine. The defendant challenged the manner in which the statement of claim had been pleaded.

The court held that the plaintiff was not obliged to plead the magazine in any specific form as envisaged by the Supreme Court Rules, and that providing a copy of the magazine in its published form to the court and the defendant was sufficient compliance with the rules. The court further held that the plaintiff was entitled to plead the magazine in its entirety to demonstrate the full force and extent of the imputations she relied upon. The court found that the true innuendo claim was adequately particularised, but directed the plaintiff to provide particulars of the republication claim. The court declined to strike out any part of the statement of claim.

Orders