HIGH COURT OF AUSTRALIA
FRENCH CJ
GUMMOW, HEYDON, KIEFEL AND BELL JJRADIO 2UE SYDNEY PTY LTD APPELLANT
AND
RAY CHESTERTON RESPONDENT
Radio 2UE Sydney Pty Ltd v Chesterton
[2009] HCA 16
22 April 2009
S474/2008ORDER
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.
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].
[1]Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7 per Griffith CJ, 8 per Isaacs J; [1908] HCA 22; Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 290 per Dixon J; [1934] HCA 60; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638‑639 per Mason and Jacobs JJ; [1979] HCA 3; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507; [1982] HCA 4.
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.
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.
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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- Case
- [2009] HCA 16
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, CJ, GUMMOW, KIEFEL AND BELL JJ,
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