Packer v John Fairfax Publications Pty Ltd - [2006] NSWSC 940

CITATION: Packer v John Fairfax Publications Pty Ltd [2006] NSWSC 940

HEARING DATE(S): 20 March 2006

JUDGMENT DATE :
14 September 2006

JUDGMENT OF: Simpson J

DECISION: Proceedings numbered 20324 of 2005 - 1. The plaintiff has leave to amend imputation 4(a); 2. imputation 4(c) is struck out; 3. liberty to replead; Proceedings numbered 20328 of 2005 - 1. Imputations (b) and (d) are struck out.

CATCHWORDS: Proceedings 20324 of 2005 - defamation - defendant’s objections to imputations - newspaper publication - internet publication - capacity of words in their natural and ordinary meaning to convey imputations - true innuendo - imputations defective in form - capacity of imputations to defame - application for order to strike out statement of claim - imputation (a) - (i) capacity - accusation of unlawful conduct in competition between rival media organisations - (ii) objections as to form - ambiguity - upheld - context does not clarify ambiguity - split infinitive - imputation (b) – (i) capacity - (ii) form - use of “and/or” - precision of pleading imputations depends upon clarity with which matter expressed - imputation (c) – capacity - imputation (d) – tone of matter complained of - Proceedings 20328 of 2005 - defamation - newspaper item - defendants' objection - capacity and form of imputations - inference available to ordinary reasonable reader - imputation of criminal conduct

LEGISLATION CITED: SCR Part 67 Rule 12A
Trade Practices Act 1974

CASES CITED: Cowan v John Fairfax Group Pty Ltd, unreported, Levine J, 20 August 1993
Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293

PARTIES: James Douglas Packer - Plaintiff
John Fairfax Pubkications Pty Ltd - 1st Defendant
Anne Lampe - 2nd Defendant (matter numbered 20328 of 2005)

FILE NUMBER(S): SC 20324/05; 20328/05

COUNSEL: B McClintock SC - Plaintiff
G O'L Reynolds SC - Defendants

SOLICITORS: Gilbert & Tobin - Plaintiff
Banki Haddock Fiora - Defendants

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

SIMPSON J

Thursday 14 September 2006

20324/05
20328/05
James Douglas Packer v John Fairfax Publications Pty Ltd

JUDGMENT

Separate trial of issues concerning imputations
Proceedings numbered 20324 of 2005:

1 HER HONOUR: In proceedings numbered 20324 of 2005, filed on 29 September 2005, the plaintiff claims damages for defamation. He alleges that, by publication in a daily newspaper, the Sydney Morning Herald on 27 September 2005, and also on the internet on the same day, the defendant published four specified imputations, each of which defamed him. He relies on the natural and ordinary meaning of the words published, and also pleads, alternatively, that, by reason of extrinsic facts known to some readers, the words conveyed the defamatory imputations to those readers (true innuendo).

2 By notice pursuant to SCR Part 67 Rule 12A, the defendant objected to each of the imputations. It argued that three of the imputations are incapable of being conveyed by the matter complained of, that the same three imputations as pleaded are defective in form,…

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: [2006] NSWSC 940
Decision Date: 14 September 2006

CaseChat Overview and Summary

In the matter of Packer v John Fairfax Publications Pty Ltd, the plaintiff sought to address defamatory statements published by the defendant in both newspaper and online formats. The plaintiff, James Packer, alleged that the defamatory statements made by the defendants, John Fairfax Publications Pty Ltd and others, caused him harm in his professional and personal reputation. The Federal Court of Australia was tasked with addressing the defendants' objections to specific imputations outlined in the plaintiff's statement of claim.

The central legal issues for the court to decide involved the capacity of the words used in their natural and ordinary meaning to convey defamatory imputations, as well as the form in which these imputations were pleaded. The defendants argued that certain imputations were defective in form and capacity, and thus should be struck out. The court had to determine whether the words used were capable of conveying defamatory meanings and whether the form in which the imputations were pleaded was sufficiently clear and precise.

The court found that some of the imputations were capable of defaming the plaintiff, while others were defective in form. Specifically, the court upheld the defendants' objections regarding the ambiguity of some imputations, noting that the context did not clarify the ambiguity. Additionally, the court found issues with the use of split infinitives and the use of "and/or" in the pleadings. The court held that the capacity of the imputations to defame depended upon the clarity with which they were expressed, and that some of the imputations were not sufficiently clear or precise. Consequently, the court allowed the defendants' objections in part, striking out certain imputations from the plaintiff's statement of claim.

The final orders of the court included the striking out of certain imputations from the plaintiff's statement of claim, while allowing others to proceed to trial. The court's decision highlighted the importance of clear and precise pleading in defamation cases, and the need for words used in a statement of claim to have the capacity to convey defamatory meanings in their natural and ordinary sense.

Orders