Saunders v Nationwide News Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Saunders v Nationwide News Pty Ltd [2005]  NSWCA 404

FILE NUMBER(S):
41217/04

HEARING DATE(S):               16/11/05

JUDGMENT DATE: 16/11/2005

PARTIES:
Edward Saunders (an infant by his next friend Stephen Russell) (claimant)
Nationwide News Pty Limited (opponent)

JUDGMENT OF:       Ipp JA Tobias JA Hunt AJA   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          20318/03

LOWER COURT JUDICIAL OFFICER:     Sperling J

COUNSEL:
C A Evatt/R Rasmussen (Claimant)
T D Blackburn SC/J C Hmelnitsky (Opponent)

SOLICITORS:
Nicolas Moir & Assocs(Claimant)
Blake Dawson Waldron (Opponent)

CATCHWORDS:

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Defamation Act 1974
Supreme Court Act 1970

DECISION:
Leave to appeal refused
Plaintiff to pay the costs of the application.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

41217/04

IPP JA
TOBIAS JA
HUNT AJA

Wednesday 16 November 2005

SAUNDERS v NATIONWIDE NEWS PTY LTD

Judgment

1. HUNT AJA:  The claimant (Edward Saunders) was the plaintiff in the Supreme Court in an action claiming damages for defamation, brought against the opponent (Nationwide News Pty Ltd) which is the publisher of the "Daily Telegraph" newspaper.  The action was based on an article published in that newspaper in 2003, when the plaintiff was seven years old.  Two editions of the same newspaper containing the matter complained of were pleaded in the plaintiff's statement of claim, but the trial proceeded on the accepted basis that there was no significant differences between the two editions. 

2. The matter complained of stated that the plaintiff, aged seven, had suffered severe burns after setting himself on fire while sniffing petrol, and that he had been rushed to hospital with third degree burns.  The article asserted that it was believed that the plaintiff was smoking at the time he was taking turns with other youths to sniff the petrol, and that he became ignited when he spilt some of the petrol on himself.  The background to this event referred to in the matter complained was what was stated to be the high level of “youth street crime” in Taree (where the plaintiff lived), and the continuing problems with Aboriginal youths (in which group the matter complained of included the plaintiff) being involved in drinking, drugs, vandalism, hooliganism and anti-social behaviour which had got out of hand.

3. The plaintiff pleaded two imputations in relation to each edition of the matter complained of.  As they were put to the jury, those imputations were:

   1.The plaintiff committed the crime of petrol sniffing.

   2.The plaintiff acted so recklessly that he severely injured himself by sniffing petrol and smoking at the same time.

   The first of those two imputations had originally been pleaded in the alternative to an imputation “The plaintiff is a petrol sniffer”, but the plaintiff elected to proceed on what was thought to be the more serious of the two alternatives.

4. At the trial of the plaintiff's imputations, held pursuant to s 7A of the Defamation Act 1974, the jury found that only the first of those two imputations was…