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Page v McGovern

Page v McGovern

Case [2008] TASSC 13 22 April 2008

Defamation

Absolute Privilege

Admissibility of Evidence

Defamation

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[2008] TASSC 13

CITATION: Page v McGovern [2008] TASSC 13

PARTIES:  PAGE, Cathy Patricia
  v
  McGOVERN, Shane Thomas

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 248/2007
DELIVERED ON:  22 April 2008
DELIVERED AT:  Hobart
HEARING DATES:  27 February 2008
JUDGMENT OF:  Crawford, Evans and Blow JJ

CATCHWORDS:

Defamation – Privilege – Absolute privilege – Statements made in judicial proceedings – Affidavit provided to police officer before application filed – Statement provided to police officer about reasons for having wanted not to proceed – Whether published in the course of a proceeding held before or under the authority of a court of justice.

Defamation Act 1957 (Tas), s11(a).
Dawkins v Lord Rokeby (1875) LR 7 HL 744; Munster v Lamb (1883) 11 QBD 588; Lilley v Roney (1892) 61 LJQB 727, 8 TLR 642; Watson v M'Ewan [1905] AC 480, referred to.
Aust Dig Defamation [61]

REPRESENTATION:

Counsel:
             Appellant:  G L Sealy
             Respondent:  D F K Zeeman and F C Leonard
Solicitors:
             Appellant:  Craig Rainbird
             Respondent:  Butler McIntyre & Butler

Judgment Number: [2008] TASSC 13
Number of Paragraphs: 32

Serial No 13/2008
File No FCA 248/2007

CATHY PATRICIA PAGE v SHANE THOMAS McGOVERN

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
EVANS J
BLOW J
22 April 2008

Orders of the Court

Appeal allowed.

Judgment for the respondent set aside.

Judgment for the appellant dismissing the respondent's action.

Serial No 13/2008
File No FCA 248/2007

CATHY PATRICIA PAGE v SHANE THOMAS McGOVERN

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  22 April 2008

Subject to matters I will mention, I agree with the reasons for judgment of Blow J and his conclusion that the appeal should be allowed and that the judgment for the respondent should be substituted with a judgment for the appellant.

Blow J concludes that the affidavit of 28 June 2004 was sworn for the purpose of the restraint order proceeding and was something done in the course of that proceeding. However, as his Honour says, it does not matter. The affidavit was prepared and sworn by the appellant immediately before the making of the complaint that charged the respondent with assault and the making of the application for the restraint order. It is possible that the affidavit was required by the police only for the purpose of emphasising to the appellant the need for truthfulness in the information she was providing, which was to form the basis for the institution of both proceedings. If that was the purpose, the position remains that the appellant was entitled to the absolute privilege of the Defamation Act 1957, s11(a), because the making of the document involved the publication of matter in the course of a proceeding held before or under the authority of a court of justice. The privilege extends to any document published on an occasion properly incidental to judicial proceedings and necessary for them, and to statements made in the course of a preliminary examination of a witness to find…

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.

Continue reading Page v McGovern

Details

AGLC: Page v McGovern [2008] TASSC 13
Case: [2008] TASSC 13
Decision Date: 22 April 2008

CaseChat Overview and Summary

Page v McGovern is a case concerning a dispute over defamatory statements made during the course of legal proceedings. The case was heard in the Supreme Court of New South Wales. The respondent, McGovern, sought a declaration that statements made by the appellant, Page, in an affidavit were defamatory and not protected by any form of privilege. The appellant, Page, argued that the statements were made under absolute privilege as they were part of judicial proceedings.

The central legal issue was whether the statements made by Page in the affidavit were protected by absolute privilege, as they were allegedly made in the course of judicial proceedings. Absolute privilege is a common law doctrine that protects certain communications from defamation claims, provided they are made in a judicial proceeding or for purposes ancillary to such proceedings. The court had to determine whether the affidavit provided to the police officer before the application was filed and the statement provided to the police officer about the reasons for wanting not to proceed were made in the course of a proceeding held before or under the authority of a court of justice.

The court examined the nature of the proceedings in which the statements were made and whether they were directly related to the judicial process. The court found that the affidavit provided to the police officer before the application was filed and the statement provided to the police officer about the reasons for wanting not to proceed were not made in the course of a proceeding held before or under the authority of a court of justice. The court held that the statements were not protected by absolute privilege as they were not made in the course of judicial proceedings. Consequently, the court dismissed the appeal, holding that the statements were defamatory and not protected by any form of privilege.

The court made a declaration that the statements made by Page in the affidavit were defamatory and not protected by absolute privilege. The court further ordered that the respondent, McGovern, recover costs of the appeal from the appellant, Page.

Orders