Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
File number:
NSD 2179 of 2017
Judge:
WIGNEY J
Date of judgment:
11 April 2019
Catchwords:
DEFAMATION – where numerous defamatory imputations alleged – consideration of whether the alleged imputations were conveyed by the publications – consideration of principles of “ordinary reasonable person” and “natural and ordinary” meaning – consideration of whether publications conveyed guilt – consideration of whether publications contained statements as an “antidote” to the “bane” of the defamatory statements – consideration of whether alleged extrinsic facts were matters of general knowledge or notoriety – where defence of justification pleaded by respondents pursuant to s 25 of the Defamation Act 2005 (NSW) – consideration of whether on balance of probabilities the words and “defamatory sting” conveyed by publications were substantially true – where onus of proving pleaded imputations were conveyed by the publications was discharged – where defence of justification failed
Held: application granted – certain defamatory imputations conveyed by the publication – defence of justification not successful
DAMAGES – where applicant sought general compensatory damages for non-economic loss – where applicant sought aggravated damages – assessment of general or compensatory damages – consideration of appropriate and rational relationship between harm sustained by applicant from the publications and the amount of damages – where applicant sought special damages for past economic loss and future economic loss as a result of defamatory publications – consideration of what applicant’s future income would have been but for the defamatory publications – consideration of expert evidence – quantification of damages
Legislation:
Defamation Act 2005 (NSW) ss 4, 8, 25, 29, 30, 34, 35, 35(1), 35(2) and 36
Evidence Act 1995 (Cth) ss 44, 69, 102, 135 and 140
[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
AGLC
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Case
[2019] FCA 496
Decision Date
CaseChat Overview and Summary
In the case of Rush v Nationwide News Pty Ltd (No 7), the applicant, Mr Rush, sought a determination that certain publications made by the respondents, Nationwide News Pty Ltd and Mr Moran, were defamatory of him. The court was required to consider whether the publications conveyed the alleged defamatory imputations and whether the defence of justification was successful. The court found that the publications conveyed certain defamatory imputations, and the defence of justification was not successful.
The court considered whether the alleged defamatory imputations were conveyed by the publications. The court applied the principles of "ordinary reasonable person" and "natural and ordinary" meaning, and found that the publications conveyed the alleged defamatory imputations. The court also considered whether the publications contained statements as an "antidote" to the "bane" of the defamatory statements, and found that the antidote did not overcome the bane. The court also considered whether the alleged extrinsic facts were matters of general knowledge or notoriety, and found that they were not.
The court also considered the defence of justification, which was pleaded by the respondents pursuant to s 25 of the Defamation Act 2005 (NSW). The court found that the onus of proving the pleaded imputations were conveyed by the publications was discharged, and that on balance of probabilities the words and "defamatory sting" conveyed by the publications were substantially true. However, the court found that the defence of justification was not successful.
The court also considered the applicant's claim for damages. The applicant sought general compensatory damages for non-economic loss, aggravated damages, special damages for past economic loss and future economic loss as a result of the defamatory publications. The court assessed the general compensatory damages, including aggravated damages, at $850,000. The assessment of special damages for economic loss suffered by the applicant was reserved for further consideration.
ORDERS:
1. Verdict and judgment be entered for the applicant.
2. The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.
3. The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.
4. The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.
Orders
Orders of the court
1. Verdict and judgment be entered for the applicant.
2. The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.
3. The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.
4. The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The question whether defamatory meanings conveyed by statements made in a publication have been removed by other statements in the publication – whether the antidote has overcome the bane – is a question of fact which again must be approached from the perspective of the ordinary reasonable reader. In that context, it must also be noted that the “bane and antidote theory reflects the fundamental proposition [that] the “reader is entitled to give some parts of the article more weight than other parts””: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [146], citing Rivkin at [50] (per McHugh J). It follows that contrary statements or conclusions in a publication will not necessary remove or undo the defamatory meanings otherwise conveyed. “True innuendo” and extrinsic facts As was noted earlier, Mr Rush contends that, if the alleged imputations did not arise from the natural and ordinary meaning of the words used in the publications, they nevertheless arose in circumstances where the words would have been read in conjunction with certain extrinsic facts. In World Hosts, Mason and Jacobs JJ said (at 641):When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to, or different from, their natural and ordinary meaning. This special or secondary meaning is not one which the words, viewed in isolation, are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts. Cases where the alleged defamatory imputations are alleged to have been conveyed having regard to the existence of extrinsic facts are said to involve a plea of “true innuendo”. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, French CJ, Gummow, Kiefel and Bell JJ described a plea of true innuendo in the following terms (at [51]):When a true innuendo is pleaded evidence may be given of special facts, known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. The essential requirement of the plea is that the matter is not one within the general knowledge of the hypothetical referees.(Footnotes omitted.) As was made clear in Chesterton, an essential requirement of the plea of true innuendo is that the alleged extrinsic or special facts are not within the general knowledge of those to whom the matter was published. The reason for that requirement is, as has already been noted, matters of general knowledge can in any event be considered in determining whether the alleged imputations were conveyed by the natural and ordinary meaning of the words used in the publication. This was explained by Lord Morris of Borth-y-Gest in Jones v Skelton at 1370-1371:The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Mr Rush also sought an injunction permanently restraining Nationwide and Mr Moran from publishing the imputations found to have been carried by the publications, as well as any imputations that do not differ in substance from them. He also sought costs and interest pursuant to ss 51A and 52 of the Federal Court of Australia Act 1976 (Cth). It was essentially agreed between the parties that the availability of injunctive relief and issues relating to costs and interest should be dealt with separately after this judgment has been delivered. JUDGMENT AND ORDERS Verdict and judgment should be entered for the applicant, Mr Rush. Nationwide and Mr Moran should be ordered to pay general damages, including aggravated damages, to Mr Rush assessed in the sum of $850,000. The matter will be listed for a case management hearing on 10 May 2019 at 9.30 am for the purposes of making orders in relation to the filing of further evidence and submissions in respect of the assessment of damages for economic loss and further submissions in relation to injunctive relief, costs and interest.