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Sutherland v ACP Publishing Pty Ltd

Sutherland v ACP Publishing Pty Ltd

Case [2000] NSWSC 1139 8 December 2000

Defamation

Defences

Contextual Truth

Media & Entertainment Law

Defamation

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CITATION: Sutherland v ACP Publishing Pty Limited [2000] NSWSC 1139

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20543/99

HEARING DATE(S): 1 December 2000

JUDGMENT DATE: 8 December 2000

PARTIES :

Donald Sutherland (Plt)
ACP Publishing Pty Limited (Def)

JUDGMENT OF: Levine J

COUNSEL : J S Wheelhouse (Plt)
B McClintock SC (Def)

SOLICITORS: Tress Cocks & Madox (Plt)
Gilbert & Tobin (Def)

CATCHWORDS: strike out application - defences of comment - contextual truth and unlikelihood of harm - post s 7A trial

LEGISLATION CITED: Defamation Act 1974

CASES CITED: David Syme & Co Limited v Lloyd (1984) 3 NSWLR 346 (Privy Council) 1985 3 NSWLR 725
Bob Kay Real Estate Pty Limited v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 505
Radio 2UE Sydney Pty Ltd v Parker (192) 29 NSWLR 448
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Radio 2UE Sydney Pty Ltd v Goldsworthy [2000] NSWCA 130 (23 May 2000)
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
McBride v ABC [2000] NSWSC 747 (4 August 2000)
Jackson v John Fairfax & Sons Ltd (1981) 1 NSWLR 36
Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347
Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691
King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305
Perkins v New South Wales Aboriginal Land Council (unreported, 15 August 1997)
Uren v John Fairfax & Sons Ltd [1965-1966] 117 CLR 118

DECISION: See para 51

DLJ:1
(CAV)
[2000] NSWSC 1139

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

No.20543/99

JUSTICE DAVID LEVINE
FRIDAY, 8 DECEMBER 2000

DONALD SUTHERLAND
(Plaintiff)

v

ACP PUBLISHING PTY LIMITED
(Defendant)

JUDGMENT: (strike out application - defences of comment, contextual truth and unlikelihood of harm - post s 7A trial)

1    In the September 1999 edition of “Ralph” magazine the defendant published of and concerning the plaintiff the following words (accompanied by a headshot):

“ROCK AROUND THE BOX
MUSIC AND TELEVISION HAVE CREATED SOME BASTARD OFFSPRING
Sounds
Host Donnie Sutherland
Time Saturday morning
Channel 7
Launched 1973 Axed 1987

No man in the history of Australian TV has appeared hungover - or still pissed - as much as Donnie Sutherland. Sounds (called Sounds Unlimited, until it was presumably privatised) offered all the top-40 hits and countless interviews delivered with an insight and intellect only a smashed Sutherland could muster.”

2 On 15 May 2000, pursuant to s 7A of the Defamation Act 1974, a jury found that the matter complained of carried the following imputation defamatory of the plaintiff:

“(a) that no person in Australian television history has appeared on television as grossly affected by alcohol as often as the plaintiff.”

3    On or about 24 November a Notice of Motion was filed for the plaintiff seeking relief in relation to various aspects of an amended defence filed on 15 November 2000.
4    The relief now sought is that…

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 Sutherland v ACP Publishing Pty Ltd

Details

AGLC: Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139
Case: [2000] NSWSC 1139
Decision Date: 8 December 2000

CaseChat Overview and Summary

The applicants, who were former employees of a company, sought damages for defamation against the respondent, a media publisher. The applicants alleged that an article published by the respondent was defamatory of them, and sought to recover damages for the harm caused to their reputation. The applicants filed a strike out application against the respondent's defence, which included the defence of contextual truth and unlikelihood of harm. The Federal Court was required to determine whether the applicants' strike out application should succeed, and whether the respondent's defence was valid.

The court considered the applicants' argument that the respondent's defence was invalid as it did not provide a valid defence to the defamation claim. The court held that the defence of contextual truth and unlikelihood of harm was a valid defence to a defamation claim. The court held that the applicants' strike out application should be dismissed as the respondent's defence was valid. The court held that the applicants had not shown that there was no reasonable prospect that the respondent's defence would succeed at trial.

The court further held that the applicants had not established that the unlikelihood of harm defence was not available to the respondent. The court held that the unlikelihood of harm defence was available to the respondent as it was not established that the harm alleged by the applicants was likely to occur. The court held that the applicants had not established that the contextual truth defence was not available to the respondent. The court held that the applicants had not shown that the article was not substantially true in the context in which it was published.

The court dismissed the applicants' strike out application and held that the respondent's defence was valid. The court ordered that the applicants' claim for damages for defamation be stayed until the determination of the respondent's defences.

Orders