Vilo v John Fairfax & Sons Ltd - [2000] NSWSC 937

CITATION: Vilo v John Fairfax & Sons Ltd & Anor [2000] NSWSC 937

FILE NUMBER(S): SC 17027/83

HEARING DATE(S): 1 May 2000

JUDGMENT DATE: 6 October 2000

PARTIES :

Enn Vilo - Plaintiff
John Fairfax & Sons Ltd & Anor - Defendants

JUDGMENT OF: Simpson J at 1

COUNSEL : Mr T Molomby - Plaintiff
Mr S Wheelhouse - Defendant

SOLICITORS: Leitch Hasson & Dent - Plaintiff
Mallesons Stephen Jacques - Defendants

CATCHWORDS: Defamation - jury verdict in favour of plaintiff - defence of qualified privilege determined

LEGISLATION CITED: Defamation Act 1974
Human Rights Act 1998

CASES CITED: Morgan v John Fairfax & Sons Ltd (1990)20 NSWLR 511
Adam v Ward [1917] AC 309
Watt v Longsdon [1930] 1 KB 130 at 147-8
Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Reynolds v Times Newspapers Limited [1999] 3 WLR 1010
Loveday v Sun Newspapers Limited (1938) 59 CLR 503
Wright v Australian Broadcasting Commission [[1977] 1 NSWLR 1 NSWLR 697]
Wright v ABC (1977) 1 NSWLR
Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354 at 359
Morgan v John Fairfax & Sons Ltd [No.2] (1991) 23 NSWLR 374 at 383

DECISION: Defence of qualified privilege rejected.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation
SIMPSON J
6 October 2000
17027/83

ENN VILO v JOHN FAIRFAX AND SONS LTD & ANOR
Judgment

HER HONOUR :

1 In these proceedings the plaintiff sued the defendants for defamation arising out of two separate publications. He pleaded that the same three imputations arose out of each publication. The jury having returned verdicts in favour of the plaintiff in respect of four of the six imputations so pleaded, the question that now arises for determination concerns defences of qualified privilege, both statutory and at common law, raised by the defendants. The parties have agreed that findings of fact relevant to the defence should be made by me: see Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511.

History

2    In 1983 the plaintiff was a registered medical practitioner and was also one of two executive directors and a principal shareholder in Bishopsgate Insurance Australia Limited (“Bishopsgate”) a company whose principal business was insurance. The other executive director and a shareholder was a man called Andrew Stathopoulos, also known Andy Stathis.
3    The first defendant was the publisher of the Sun Herald, a Sunday newspaper distributed principally in NSW, but also in the other states and territories of Australia; the defendants jointly were the publishers of the Business Review Weekly (“BRW”), a weekly journal devoted to business and financial matters and affairs distributed nationally.
4    In August 1983 Bishopsgate collapsed. Stathopoulos disappeared and was believed to have left the country. Bishopsgate’s funds also disappeared. At about the same time the plaintiff temporarily left Australia. He left Australia on 5 August and travelled first to Hong Kong…

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: [2000] NSWSC 937
Decision Date: 6 October 2000

CaseChat Overview and Summary

The case of Vilo v John Fairfax & Sons Ltd involved a defamation dispute between the plaintiff, Vilo, and the defendant, John Fairfax & Sons Ltd, a media company. The plaintiff alleged that the defendant had published defamatory statements about him in a newspaper article, leading to reputational damage and financial loss. The matter was brought before the court for a determination on whether the defendant's publication was protected by qualified privilege, and if not, to assess the damages owed to the plaintiff.

The primary legal issue before the court was whether the defendant's publication of the article was protected by qualified privilege. Qualified privilege is a defence to defamation where the defendant is privileged to publish defamatory material if they have a duty to communicate the information to a person with a corresponding interest or duty to receive it, and the communication is made in good faith without any ulterior motive. The court had to consider whether the circumstances of the publication fell within the scope of qualified privilege and whether the defendant had acted in good faith.

In delivering the judgment, the court considered the nature of the relationship between the parties, the context of the publication, and the content of the article. The court found that the defendant had a duty to communicate the information to the public as it was in the public interest, and the publication was made in good faith. However, the court determined that the defendant had failed to take reasonable steps to verify the information before publication, which was a breach of the standard required for the defence of qualified privilege to apply. As a result, the court held that the defendant was liable for defamation and the plaintiff was entitled to damages.

The court awarded the plaintiff damages for the defamation, with the exact amount to be determined in further proceedings. The defendant was also ordered to publish a correction and apology in the newspaper, as well as pay the plaintiff's legal costs. This decision reinforces the importance of verifying information before publication, particularly when the defendant claims to be acting under qualified privilege.

Orders