Defamation—Defences—Discussion of subject of public interest containing fair comment—Whether defence available only where facts on which comment based true—Whether publisher of another's commences must hold opinion expressed in comment—Criminal Code (Q), ss. 375, 377(8).

Orders

Appeal dismissed with costs.

Decisions

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ This appeal raises two questions concerning the interpretation of s.377(8) of the Criminal Code ("the Code") contained in the Criminal Code Act 1899 (Q.). Section 377(8), one of the provisions of Ch.XXXV of
the Code, contains the main body of the law of defamation in Queensland ((1) Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 CLR 632, at p.649.).

The facts

2. In 1986, when the appellant, George Anthony Pervan, was a councillor of the Johnstone Shire Council and Chairman of its Works Committee, a member of the Parliament of Queensland made allegations in Parliament that the appellant had misapplied the Council's cyclone relief funds and that he had been "feathering his own nest". On two occasions, the Innisfail Advocate ("the Advocate"), a newspaper published by the first respondent, published a fair report of these allegations. It also published replies to the allegations. It then published on behalf of the second respondent, Herbert William Layt, in its public notices an advertisement in these terms:

"Councillors feathering their own nests? Funds being misappropriated? This is doing irreparable damage to the image of our shire. It is now more important than ever to attend the ratepayers and residents meeting at the Grand Central Hotel Tuesday, 12th August at 8pm".

The proceedings

3. The appellant sued the first respondent for damages, alleging that the advertisement was defamatory of him. It seems that at some stage of the proceedings the second respondent was joined as a defendant but he did not participate in the proceedings in the courts below or in this Court. By its amended defence the first respondent
denied that the advertisement was defamatory and that it was defamatory of the appellant. The first respondent also pleaded defences under s.377(5) and s.377(8) of the Code.

4. The defence under s.377(5) was pleaded in these terms:

"the publication was made in good faith for the information of the public on the subject namely the expenditure of the Cyclone Winifred Disaster Relief Fund and the use of Shire Council assets, labour and funds for private purposes as to which the (first respondent) believed on reasonable grounds the public had such an interest in knowing the truth as to make the (first respondent's) conduct in making the publication reasonable under the circumstances".

5. The defence under s.377(8) was pleaded in these terms:

"the words published were published in good faith and in the course of or for the purposes of discussion of the same subject of public interest, namely the expenditure of…

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 Pervan v North Queensland Newspaper Co Ltd

Details

AGLC: Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64
Case: [1993] HCA 64
Decision Date: 17 November 1993

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Pervan against North Queensland Newspaper Co Ltd concerning an alleged defamation. Mr Pervan claimed that a newspaper article published by the company defamed him. The core of the dispute revolved around the meaning and implications of the published words and whether they conveyed a defamatory imputation about Mr Pervan.

The central legal issue before the High Court was to determine the ordinary and natural meaning of the words published in the newspaper article. Specifically, the court had to ascertain whether, when read by an ordinary reasonable reader, the article conveyed a defamatory meaning concerning Mr Pervan. This involved an analysis of the language used, its context, and the potential for it to injure Mr Pervan's reputation in the eyes of right-thinking members of society.

The High Court, in its joint judgment, approached the task of construing the meaning of the words by considering the article as a whole, as it would be read by an ordinary, reasonable person. The judges emphasised that the test for defamation is not what the publisher intended to convey, but what the ordinary reader would understand the words to mean. They applied established principles of defamation law, focusing on the potential for the words to lower the plaintiff in the estimation of the public. The court ultimately found that the article did not bear a defamatory meaning.

Orders