Radio 2UE Sydney Pty Ltd v Chesterton

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HIGH COURT OF AUSTRALIA

FRENCH CJ
GUMMOW, HEYDON, KIEFEL AND BELL JJ

RADIO 2UE SYDNEY PTY LTD  APPELLANT

AND

RAY CHESTERTON  RESPONDENT

Radio 2UE Sydney Pty Ltd v Chesterton
[2009] HCA 16
22 April 2009
S474/2008

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

R G McHugh SC with J Chambers for the appellant (instructed by Banki Haddock Fiora)

C A Evatt with R K M Rasmussen for the respondent (instructed by Beazley Singleton Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. FRENCH CJ, GUMMOW, KIEFEL AND BELL JJ.   The common law recognises that people have an interest in their reputation and that their reputation may be damaged by the publication of defamatory matter about them to others[1].  In Uren v John Fairfax & Sons Pty Ltd[2] Windeyer J explained that compensation for an injury to reputation operates as a vindication of the plaintiff to the public, as well as a consolation[3].

  2. Spencer Bower[4] recognised the breadth of the term "reputation" as it applies to natural persons and gave as its meaning:

    "[T]he esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit …".

    [4]A Code of the Law of Actionable Defamation, 2nd ed (1923) at 3.

  3. A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

  4. Lord Atkin proposed such a general test in Sim v Stretch[5], namely that statements might be defamatory if "the words tend to lower the plaintiff in the estimation of right‑thinking members of society generally"[6].  An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule[7] but it had come to be considered as too narrow[8].  It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff…

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Details
Case
[2009] HCA 16
Decision Date

CaseChat Overview and Summary

Radio 2UE Sydney Pty Ltd (appellant) appealed to the High Court of Australia against a decision of the Court of Appeal of New South Wales concerning imputations made about the respondent's professional reputation. The dispute centred on whether the jury had been correctly directed on the test for determining whether statements were defamatory, particularly in the context of business or professional reputation.

The High Court was required to determine whether the general test for defamation, which assesses whether imputations would lead ordinary reasonable members of the community to think less of a plaintiff, applies to statements concerning a plaintiff's business or professional reputation. It also considered whether a jury in such cases should be directed to apply the standards of the general community or those of hypothetical referees with special knowledge of the relevant business or profession, and whether the Court of Appeal in *Gacic v John Fairfax Publications Pty Ltd* had erred in its approach.

The Court held that the general test for defamation is applicable to all imputations that allegedly injure a plaintiff's reputation, including those relating to their business or professional standing. The assessment of whether an imputation lowers a plaintiff in the estimation of ordinary reasonable members of the community is to be made by reference to the general knowledge and standards of the community. While a plaintiff may plead and lead evidence of special facts to establish a true innuendo requiring particular knowledge within a business or profession, there is no basis for applying the standards of hypothetical referees other than the ordinary reasonable person. The Court found that the trial judge's directions had correctly conveyed the general test to the jury, and no substantial wrong or miscarriage of justice had occurred.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ CJ, GUMMOW, KIEFEL AND BELL JJ HEYDON J (dissent)
There can be no doubt that the jury would have understood, from the general directions given by her Honour, that they were to assess any injury to the plaintiff's reputation resulting from the imputations and they were to undertake that assessment from the point of view of ordinary reasonable decent members of the community. The only distinction that is likely to have been obvious to the jury was that drawn by her Honour as between the two different aspects of reputation to which different imputations were to be attributed. The jury would not have understood that they were to ask whether the plaintiff was injured financially in the practice of his profession. It was made abundantly clear that they were to consider the effect upon his professional reputation in connection with the imputations in question. In that regard they had been told that the question was whether ordinary reasonable members of the community would think less of the plaintiff. No miscarriage of justice resulted from the trial judge's directions.Conclusion and orders The Court of Appeal in Gacic was in error in requiring a jury to be directed that the general test as to whether an imputation is defamatory is not to be applied in cases involving defamation in the way of a plaintiff's business or professional reputation. The reasons of the majority of the Court of Appeal in this case do not provide additional support for such an approach. The general test for defamation is relevant to all imputations which are said to have injured a plaintiff's reputation in some respect. The likelihood that the ordinary reasonable person may think the less of a plaintiff because of the imputations is assessed by reference to that person's general knowledge and their knowledge of standards held by the general community, as they may apply to what is said about the plaintiff. Because such a person can be expected to apply the standards of the general community, he or she may be described as "decent". The standards are not limited to those of a moral or ethical kind. That a particular imputation may not require the application of a community standard does not render the general test inapplicable. The inquiry as to the effect upon reputation remains. In a case where a secondary defamatory meaning is alleged, which may require knowledge of particular facts within a business or profession, those special facts may be pleaded and led in evidence in support of a true innuendo. There is no warrant for the application of the knowledge or attitudes of a hypothetical referee other than those of the ordinary reasonable person. The majority of the Court of Appeal should have held that the general test applied in the case of the imputations in question. Nevertheless the Court was correct in its conclusion that the appeal should be dismissed. The trial judge's directions would have conveyed to the jury that they must apply the general test, adjudged by reference to the ordinary reasonable reader. The appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, CJ, GUMMOW, KIEFEL AND BELL JJ,

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