Seary v Molomby - [1999] NSWSC 981

Reported Decision: (1999) Aust Torts Reports 81-536

New South Wales

Supreme Court

CITATION: Seary v Molomby [1999] NSWSC 981

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 13617/91

HEARING DATE(S): 16/8/99; 18/8/99; 19/8/99; 23/8/99; 24/8/99; 25/8/99; 26/8/99; 30/8/99; 31/8/99

JUDGMENT DATE:
28 September 1999

PARTIES :

Richard Seary
Tom Molomby

JUDGMENT OF: Sully J

COUNSEL : Tom Molomby - in person
Richard Seary - in person

SOLICITORS:

CATCHWORDS:

ACTS CITED: Defamation Act 1974 (NSW)
Crimes Act 1900 (NSW)

CASES CITED: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 260-264
Watt v Longsdon (1930) 1 KB 130 at 143-144
James v Baird (1916) S.C (H.L) 158 at 163-164
Austin v Mirror Newspapers Ltd (1958) AC 299
Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR at 749
Browne v Dunn
Godfrey v Henderson (1944) 44 SR (NSW) 447, at 454
Morgan v John Fairfax & Sons ltd (No. 2) (1991) 23 NSWLR 374 at 387E
Morgan per Hunt AJA at (1991) 23 NSWLR 387F
Briginshaw v Briginshaw & anor [1938] 60 CLR 336 at 361, 362

DECISION: Judgment for the defendant against the plaintiff

48
SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

28 September 1999

13617/91 - Richard SEARY v Tom MOLOMBY

JUDGMENT 1 HIS HONOUR: In these proceedings Mr. Richard Seary, [“the plaintiff”], sues to recover damages for libel. The matter of which the plaintiff complains is the entirety of a book entitled “Spies Bombs and the Path of Bliss”. The book, [“the subject book”], was published in 1986, its author being Mr. Tom Molomby, [“the defendant”], whom the plaintiff sued originally as one of two defendants, the other defendant being the author of a Foreword to the subject book. The plaintiff originally sued upon two alleged defamatory imputations, which were pleaded in the following terms:

“(a) The Plaintiff is a murderer.

(b) The Plaintiff framed members of the Ananda Marga by committing perjury.”

2 On 23 August last the Court, in a reserved judgment, dealt with certain questions that had been separately tried following upon the making of an order in that behalf and pursuant to SCR Part 51. The effect of that judgment was that the plaintiff’s case against the author of the Foreword failed; as did the plaintiff’s case against both defendants in so far as it relied upon the imputation (a) as pleaded. The Court held, however, that the imputation (b) as pleaded was carried in fact by the contents of the subject book; and was, further, defamatory of the plaintiff. 3 Following the delivery of its reserved judgment, the Court heard the balance of the plaintiff’s case against the defendant. That entailed, so far as the plaintiff was concerned, a consideration of the issue of damages; and of the issue of malice as a factor defeating the various defences pleaded by the defendant. The continued hearing entailed, so far as the defendant was concerned, a consideration of the defences of: qualified privilege at Common Law; statutory qualified…

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 Seary v Molomby

Details

AGLC: Seary v Molomby [1999] NSWSC 981
Case: [1999] NSWSC 981
Decision Date: 28 September 1999

CaseChat Overview and Summary

In Seary v Molomby, the plaintiff, Richard Seary, sued Tom Molomby for libel over the content of Molomby's book, "Spies Bombs and the Path of Bliss". The plaintiff alleged that two defamatory imputations in the book caused him harm. The first was that he was a murderer, and the second that he framed members of Ananda Marga by committing perjury. The case involved several legal issues, including the applicability of common law qualified privilege, statutory qualified privilege, comment, justification, contextual truth, malice, and damages.

The Court first considered the defence of common law qualified privilege. The defendant argued that he had a social or moral duty to publish the book and that the recipients had a special interest in the subject matter. However, the Court held that Molomby had not established the existence of such a duty or interest sufficient to attract the defence of common law qualified privilege.

The Court then assessed the defence of statutory qualified privilege under s.22 of the Defamation Act 1974 (NSW). Molomby argued that he had published the book in the course of giving information to the public and that his conduct in doing so was reasonable. The Court found that the defendant had satisfied the requirements of s.22(1) and established this defence.

Next, the Court examined the defence of comment. The defendant argued that the relevant imputation was a comment rather than a statement of fact, based on the proceedings in public of a court and an inquiry. The Court accepted that the imputation was a comment and that it related to a matter of public interest. However, the Court found that Molomby had not established that the imputation was substantially true.

The Court also considered the defence of truth. Under s.15 of the Act, Molomby had to prove the substantial truth of the imputation. The Court found that Molomby had not satisfied this requirement.

Finally, the Court assessed the defence of contextual truth, where the defendant had to prove that the contextual imputations were substantially true and that their publication did not further injure the plaintiff's reputation. The Court found that some of the contextual imputations were substantially true, but that their publication did not neutralise the effect of the main defamatory imputation.

The Court concluded that Molomby had established the defences of statutory qualified privilege and comment, but that these defences were not rebutted by proof of malice. The Court also noted that the plaintiff had not proven quantifiable damages. Consequently, the Court ruled in favour of the defendant and against the plaintiff.

The Court will hear the parties on the question of costs and will determine the appropriate amount based on the circumstances. The exhibits will remain in Court for 28 days from the judgment date. If an appeal is filed within this period, the exhibits will remain in Court pending further order; otherwise, they will be handed out to the respective parties.

Orders