Perry v The Examiner Newspaper Pty Ltd - [2006] TASSC 18

[2006] TASSC 18

CITATION: Perry v The Examiner Newspaper Pty Ltd [2006] TASSC 18

PARTIES:  PERRY, Dale Neville
  v
  EXAMINER NEWSPAPER PTY LTD (THE)

PERRY, Leon Maxwell
v
EXAMINER NEWSPAPER PTY LTD (THE)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  43/2005

44/2005

DELIVERED ON:  10 April 2006
DELIVERED AT:  Launceston
HEARING DATE:  24 March 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Defamation – Actions for defamation – Other proceedings before trial – Separate decision of questions – Determination of question whether the publication is capable of bearing the alleged defamatory meanings – Question determined upon the basis of facts pleaded in the statement of claim.
Defamation Act 1957 (Tas), s5(4).

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, applied.
Jones v Skelton [1964] NSWR 485; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, followed.
Aust Dig Defamation [144]

REPRESENTATION:

Counsel:
             Applicant/Defendant:  G L Jones and G Hryce
             Respondents/Plaintiffs:                   D Crampton
Solicitors:
             Applicant/Defendant:  Douglas & Collins
             Respondents/Plaintiffs:                   Levis Stace & Cooper

Judgment Number: [2006] TASSC 18
Number of paragraphs: 26

Serial No 18/2006
File Nos 43/2005
44/2005

DALE NEVILLE PERRY v THE EXAMINER NEWSPAPER PTY LTD
LEON MAXWELL PERRY v THE EXAMINER NEWSPAPER PTY LTD

REASONS FOR JUDGMENT UNDERWOOD CJ

10 April 2006

Introduction

The plaintiffs, who are brothers, each issued a writ on 9 May 2005, claiming damages for defamation against the defendant newspaper. Apart from the name of the plaintiff, the statements of claim in each action are identical. The plaintiffs claim that they were defamed by the publication of the following article in the Sunday Examiner:

"perrys to face off in big match
Brothers Dale and Leon Perry fell out in a dispute over a family inheritance five years ago and haven't spoken to each other since.
Despite the fact they are former football team‑mates and their sporting careers have run almost in parallel they continue to keep their distance from each other.
At the Devonport Oval tomorrow their personal battle will continue when they are opposed to each other for the first time as senior coaches in the Anzac Day town premiership.
Dale is into his sixth year as coach of the Magpies and Leon took over as coach of East Devonport at the start of the season.
Although the communication lines have broken down between them they have a respect for each other's achievements.
Leon Perry on his brother Dale: 'Outside of his own family, coaching football has been the biggest part of Dale's life, that's what he has wanted to do', he said.
'He has been able to get all the coaching accreditation and to overtake Noel Johnson as Devonport's longest serving coach would be very sweet for him'
Dale Perry on his brother Leon: 'We were team‑mates together at Devonport in 1981 and I coached him at Wesley Vale in 1993,' he said.
'Leon had a good record as a player and he worked very hard on his football team when he was…

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] TASSC 18
Decision Date: 10 April 2006

CaseChat Overview and Summary

The plaintiff in this case, Perry, brought an action for defamation against the defendant, The Examiner Newspaper Pty Ltd, in the Federal Court of Australia. Perry alleged that a series of articles published by the defendant in their newspaper were defamatory of his character and reputation. The dispute centred on the interpretation of the articles and whether they conveyed the meanings alleged by Perry. The court was tasked with determining the legal issues related to the interpretation of the published articles and whether they were capable of bearing the defamatory meanings claimed by Perry.

The primary legal issue before the court was whether the publication was capable of bearing the defamatory meanings alleged by Perry. This required an analysis of the articles in question and an interpretation of the language used. The court had to determine whether a reasonable reader, upon reading the articles, would understand them to convey the meanings alleged by Perry. Additionally, the court needed to consider whether there were any other plausible interpretations of the articles that would not be defamatory. The court's decision on this matter would set the stage for the trial, determining whether the case would proceed to a full hearing or be dismissed at an earlier stage.

In reaching its decision, the court examined the facts pleaded in Perry's statement of claim and the articles published by the defendant. The court found that the articles, when read as a whole and in the context in which they were published, were capable of bearing the defamatory meanings alleged by Perry. The court concluded that a reasonable reader would understand the articles to convey the meanings that Perry claimed were defamatory. This finding allowed the case to proceed to trial, as the court determined that the publication was indeed capable of bearing the alleged defamatory meanings. Consequently, the court dismissed the defendant's application to determine the question at an earlier stage.

Orders