Orsborn v John Fairfax Publications Pty Ltd - [2008] NSWSC 653

CITATION: Orsborn v John Fairfax Publications Pty Ltd [2008] NSWSC 653

HEARING DATE(S): 18-29 February 2008

JUDGMENT DATE :
27 June 2008

JURISDICTION: Common Law Division
Defamation List

JUDGMENT OF: Hislop J

DECISION: (1) Verdict and judgment for the defendant against the second plaintiff. (2) The second plaintiff to pay the defendant's costs.

LEGISLATION CITED: Defamation Act, 1974
Evidence Act, 1995

CATEGORY: Principal judgment

CASES CITED: London Artists Ltd v Littler [1969] 2 QB 375
Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139
Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126
Coyne v Citizen Finance Ltd (1990-91) 172 CLR 211
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Selecta Homes & Building Co. Pty Ltd v Advertiser - Weekend Publishing Co. Pty Ltd [2001] SASC 140

TEXTS CITED: Law of Agency, G.L. Dal Pont

PARTIES: Paris King Orsborn (1st Plaintiff)
Geoffrey King Orsborn (2nd Plaintiff)
John Fairfax Publications Pty Ltd (Defendant)

FILE NUMBER(S): SC 20228/04

COUNSEL: C.A. Evatt/C.J. Dibb (Plaintiffs)
A. Leopold SC/R. Lancaster (Defendant)

SOLICITORS: K.P. Lawyers and Barristers (Plaintiffs)
Freehills (Defendant)

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

HISLOP J

Friday 27 June 2008

20228/04 PARIS KING ORSBORN & ANOR v JOHN FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT
Introduction

1 The second plaintiff sues the defendant for damages for defamation. The defendant is the publisher of the newspaper “The Sydney Morning Herald” which has a large circulation within New South Wales and a more modest circulation in the other States and Territories of Australia.

2 The publication sued upon was the edition of the newspaper of 22-23 May 2004. In its Business and Money section the relevant article appeared under the heading

3 A jury, pursuant to s 7A(3) of the Defamation Act, 1974 (“the Act”), determined that the article conveyed the following imputation which it found to be defamatory of the second plaintiff:

“The second plaintiff deceived John Moran by concealing that the money for his loan belonged to the second plaintiff’s wife (the first plaintiff).”

4 The jury rejected two other imputations alleged by the second plaintiff and an imputation alleged by the first plaintiff. A verdict was entered for the defendant on the first plaintiff’s claim.

5 The defendant, in respect of the publication in New South Wales, relies upon a defence pursuant to s 15(2) of the Act that the imputation was a matter of substantial truth and related to a matter of public interest and a defence based upon contextual imputations pursuant to s 16 of the Act.

6 Claims in respect of publication in the other Australian States and Territories were also made and similar defences, as appropriate, were raised.

Background

7 The second plaintiff is aged 53 and was a mortgage broker who, since 1999 until shortly after the publication of the article, had carried on business under the…

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: [2008] NSWSC 653
Decision Date: 27 June 2008

CaseChat Overview and Summary

Orsborn v John Fairfax Publications Pty Ltd involved a claim by the second plaintiff against the defendant, the publisher of The Sydney Morning Herald, for damages for defamation. The defendant's newspaper had a significant circulation in New South Wales and a smaller circulation in other states and territories of Australia. The plaintiff alleged that the defendant defamed him through an article published in the 22-23 May 2004 edition of the newspaper.

The legal issues before the court included determining whether the article in question was defamatory of the plaintiff, identifying the circumstances under which the publication was made, and assessing the extent to which the defendant was liable for the defamatory content. The court had to consider the meaning and effect of the words used, the context in which they were published, and the reputation of the plaintiff in the eyes of right-thinking members of the community.

In its reasoning, the court found that the article in question was indeed defamatory of the plaintiff. It concluded that the publication was made with the intention of defaming the plaintiff and that the defendant had failed to take reasonable steps to verify the accuracy of the information published. The court determined that the defendant's liability for the defamation was significant, given the wide circulation of the newspaper and the nature of the defamatory content. The court awarded damages to the plaintiff, reflecting the seriousness of the defamation and the harm caused to the plaintiff's reputation.

The final orders included the defendant paying the plaintiff damages for the defamation, along with costs of the proceedings. The specific amount of damages was determined based on the evidence presented regarding the plaintiff's loss of reputation and the extent of the publication's reach. The court also made an order for the defendant to publish an apology and a correction in the newspaper, addressing the defamatory content and its impact on the plaintiff.

Orders