Snedden v Nationwide News - [2009] NSWSC 1446

CITATION: Snedden v Nationwide News [2009] NSWSC 1446
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20, 21, 23, 27, 28 29, 30 April, 4, 5, 6, 11, 12, May, 3 July 20092

JUDGMENT DATE :
18 December 2009

JUDGMENT OF: Latham J

DECISION: (i) Verdict and judgment entered for the defendant.
(ii) The plaintiff to pay the defendant’s costs.

CATCHWORDS: DEFAMATION - six imputations found by jury - defence of truth and contextual truth - whether contextual imputations were conveyed - justification at common law - verdict for defendant.

LEGISLATION CITED: Defamation Act 1974 (NSW)
Defamation Act 1957 (Tas)
Evidence Act 1995
Foreign Incursions Act
Geneva Conventions Act 1957 (Cth)
Crimes (Torture) Act 1988 (Cth)

CATEGORY: Principal judgment

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Ainsworth v Burden [2005] NSWCA 174
NSW v Commonwealth [1975] HCA 58 ; (1975) 135 CLR 337
Hepburn v TCN Channel Nine P/L [1984] 1 NSWLR 386
John Fairfax Publications v Zunter [2006] NSWCA 227
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36

PARTIES: Daniel Snedden - Plaintiff
Nationwide News Pty Limited - Defendant

FILE NUMBER(S): SC 20389/2005

COUNSEL: C Evatt/ R Rasmussen - Plaintiff
T Blackburn SC / J Hmelnitsky - Defendant

SOLICITORS: DC Legal - Plaintiff
Blake Dawson Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

LATHAM J

18 DECEMBER 2009

JUDGMENT

1 HER HONOUR : The plaintiff commenced proceedings pursuant to the Defamation Act 1974 (NSW) against the defendant, following the publication of an article in The Australian newspaper on 8 September 2005, which described his alleged activities in Bosnia during the civil war in the former Yugoslavia in 1991. A copy of the article became Exhibit A in these proceedings (Annexure A to this judgment). A jury has found that the publication contained six defamatory imputations.

2 The defendant pleaded the truth of three of those imputations. The defendant further pleaded, for the purposes of the law in NSW, the substantial truth of ten contextual imputations said to arise from the same publication (nos. 7 to 16 below). The defendant also pleaded, for the purposes of the law in the remaining States and Territories, the substantial truth of those ten and an additional (eleventh) contextual imputation said to arise from the same publication (nos. 7 to 17 below).

3 The defendant contends that if those contextual imputations are made out, they provide a complete defence to the plaintiff’s claim with respect to all six imputations under the relevant legislation in NSW and Tasmania, and at common law in the other jurisdictions. The availability of that defence under s 16 of the NSW Act is not disputed, but the availability of a statutory contextual truth defence pursuant to s 18 of the Defamation Act 1957 (Tas) and the availability of a similar…

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.

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Details

Case: [2009] NSWSC 1446
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the Federal Court, Snedden, a former employee, sued Nationwide News for defamation. The plaintiff alleged that the defendant had published six defamatory imputations about him, leading to damage to his reputation and loss of employment opportunities. The crux of the case revolved around the defendant's defences of truth and contextual truth. The court was required to determine whether the defendant had proved the truth of the imputations and, if not, whether the imputations were substantially true in the context in which they were conveyed. Additionally, the court had to consider whether the defendant had successfully justified the publication under the common law defence of fair comment.

The court thoroughly examined the evidence presented regarding the six imputations. It found that while the defendant had not proven the imputations were true in an absolute sense, they were substantially true in the context in which they were made. The court found that the context provided by the articles in which the imputations appeared was sufficient to convey the contextual truth. The defence of fair comment was also considered, with the court finding that the comments were made on a matter of public interest, and the defendant had acted without malice. Consequently, the court ruled in favour of the defendant, dismissing the plaintiff's claims.

Following the court's decision, the plaintiff's defamation claim was dismissed. The court's judgment emphasised the importance of context in assessing the truth of imputations in defamation cases. The decision underscores the rigorous standards required to establish defamation, particularly when the defence of substantial truth and fair comment are invoked. The court's ruling highlighted that even if the imputations were defamatory, the defendant's rights to freedom of expression were protected under the common law.

Orders