Visscher v Maritime Union of Australia (No 2)
[2013] NSWSC 1552
•23 October 2013
Supreme Court
New South Wales
Case Title: Visscher v Maritime Union of Australia (No 2) Medium Neutral Citation: [2013] NSWSC 1552 Hearing Date(s): 23 October 2013 Decision Date: 23 October 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Exhibit N admitted.
Catchwords: DEFAMATION - tender of reader response on web page to content identical to matter complained of - no question of principle. Category: Procedural and other rulings Parties: Timothy Visscher (Plaintiff)
Maritime Union of Australia (Defendant)Representation - Counsel: Counsel:
T. Molomby SC, Ms L. Goodchild (Plaintiff)
R.K. Weaver (Defendant)- Solicitors: Solicitors:
Roderick Storie Solicitors (Plaintiff)
Slater & Gordon (Defendant)File Number(s): 2011/339947
EX TEMPORE JUDGMENT
On admissibility of exhibit N; see transcript p161
On the second day of this trial I admitted, over objection, a document tendered on behalf of the plaintiff which has now become exhibit N. At the time of admitting the document I indicated that I would give reasons for my ruling the next day. These are those reasons.
The plaintiff, Mr Visscher, sues the Maritime Union of Australia ("MUA") in respect of an article appearing on its website on and from 18 February 2011 (the "first matter complained of"). He also sues the MUA in respect of an article located on a website associated with the Cootamundra Herald on and from the same date (the "second matter complained of"). He pleads that the MUA published the second matter complained of. Possibly amongst other matters in support of that contention, Mr Visscher relies on a "link" located at the bottom of the first matter complained of, which refers or directs the reader to the web page hosting the second matter complained of.
Both articles are said to have been published and are alleged to defame the plaintiff in and about his role as the Master of a ship off the waters of Western Australia in February 2011. Thus, and by way of example, it is pleaded that both articles conveyed a defamatory imputation to the effect that "as a Master of a vessel at sea caught in a cyclone, he had no due regard for the safety of his crew".
Exhibit N is a printout of a web page. The printout contains an article which is identical to the content of the second matter complained of, however, the web page in question is different to either that said to be run by the MUA or by the Cootamundra Herald. The printout includes comments that appear to have been posted by readers of the article. They are critical of the plaintiff. The strongest of them was as follows:
"The Master is a moron, probably criminal. If any lives are lost and he survives he should go to gaol forever. Moron."
Counsel for the MUA, Mr Weaver, submitted that the material contained in exhibit N was not relevant. He noted that it is a different publication to that sued upon and the reaction that is recorded is considerably more extreme than that which might ordinarily be said to arise from the imputations as pleaded.
Senior Counsel for the plaintiff, Mr Molomby SC, explained that he did not seek to tender exhibit N in order to show how the ordinary reasonable reader might construe the article and, in particular, whether it gave rise to either the imputations pleaded or whether any such imputations were defamatory. Instead, he contended that exhibit N was relevant to damages. In particular, he contended that the response recorded in exhibit N is an example of the type of reaction that the Court could infer was or possibly might have been provoked in a reader of the second matter complained of, which, as I have stated, was in identical terms.
On this limited basis I consider that exhibit N is probative of a fact in issue, namely, what damage, if any, was occasioned to the plaintiff's reputation by the publication of the second matter complained of. It is important to treat the responses recorded of the persons noted in exhibit N, not as evidence of what the article conveys, but only as evidence of the opinion that those persons hold of the plaintiff as a consequence of that publication.
Considered in that way, it is clearly some evidence of damage to his reputation. Further, although the response was to a different publication, the fact that a person reacted as recorded in exhibit N to a publication identical to the second matter complained of is capable of supporting a conclusion that others would have reacted in the same or similar way to the second matter complained of. By that process of reasoning, the recorded reaction is capable of affecting the Court's assessment of whether the plaintiff's reputation was damaged by the second matter complained of and, if so, to what extent.
For those reasons and on that basis, I admitted exhibit N.
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