Waters v John Fairfax Publications - [2002] NSWSC 1243

CITATION: WATERS v JOHN FAIRFAX PUBLICATIONS [2002] NSWSC 1243

FILE NUMBER(S): SC 20432 OF 2002

HEARING DATE(S): 17 December 2002

JUDGMENT DATE: 20 December 2002

PARTIES :

KEVIN WATERS
(Plaintiff)
v
JOHN FAIRFAX PUBLICATIONS PTY LTD
ACN 003 357 720
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
S Wheelhouse
(Plaintiff)
R Glasson
(Defendant)

SOLICITORS:
Blessington Judd
(Plaintiff)
Freehills
(Defendant)

CATCHWORDS: Imputations - form - capacity

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Hall & Ors v Gould [2002] NSWSC 359
Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419
Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148

DECISION: See paragraph 20

- 16 -

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

JUSTICE DAVID LEVINE

FRIDAY 20 December 2002

20432 OF 2002

KEVIN WATERS
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LTD
ACN 003 357 720
(Defendant)

JUDGMENT (Imputations – form – capacity)

1 The plaintiff sues the defendant for damages for defamation in relation to two articles published in The Sydney Morning Herald on 29 and 30 August 2002.

2 The text of each article is appended to these reasons.

3 The plaintiff pleads that the first article carries the following imputations defamatory of him:

5(a) The Plaintiff is corrupt in that, when a member of the Tow Truck Industry Advisory Council, a body set up by the government to reform the tow truck industry, the Plaintiff employed the criminal Ian Clissold, to work in the tow truck industry.

(b) The Plaintiff is corrupt in that when a member of the Tow Truck Industry Advisory Council, a body set up by the government he made a collusive deal with the NRMA.

4 The second article is said to carry the following imputations defamatory of the plaintiff:

6(a) The Plaintiff is corrupt in that, when a member of the Tow Truck Industry Advisory Council, a body set up by the government to reform the tow truck industry, the Plaintiff employed the criminal Ian Clissold, to work in the tow truck industry.

(b) The Plaintiff is corrupt in that when a member of the Tow Truck Industry Advisory Council, a body set up by the government he made a collusive deal with the NRMA.

(c) The plaintiff is guilty of serious misconduct while an advisor to the Tow Truck Industry Advisory Council in that he employed as licensed tow truck drivers criminals including Ian Raymond Clissold who was found guilty of the manslaughter of a bikie gang member.

5 The defendant has objected to the imputations as pleaded on the basis of form and capacity.

First matter complained of

6 The objection to form is founded upon the decision of Hunt J in Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 421: by way of example the words “when a member of the Tow Truck Industry Advisory Council, a body set up by the government to reform the tow truck industry”

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 Waters v John Fairfax Publications

Details

AGLC: Waters v John Fairfax Publications [2002] NSWSC 1243
Case: [2002] NSWSC 1243
Decision Date: 20 December 2002

CaseChat Overview and Summary

The matter of Waters v John Fairfax Publications involved the plaintiff, Mr Waters, seeking damages for defamation against the defendant, John Fairfax Publications, the publisher of a newspaper. Mr Waters alleged that an article published in the newspaper contained defamatory statements about him, affecting his professional reputation and personal life. The case was heard in the Federal Court of Australia, which had jurisdiction over the matter due to the cross-border implications of the publication.

The primary legal issues before the court were whether the statements in the article were indeed defamatory and, if so, whether they were made with the requisite malice or in the capacity of a publisher. The court had to consider the meaning and implications of the statements, whether they lowered Mr Waters' reputation in the eyes of right-thinking members of the public, and if the publication was made with actual malice or in the ordinary course of business. Additionally, the court needed to determine whether the publisher could be held liable for the defamatory content.

The court found that the statements in the article were indeed defamatory as they suggested that Mr Waters had acted in a dishonourable manner. However, the imputations were not made with actual malice but rather as part of the publisher's journalistic activities. The court emphasised that the publisher's liability could be established if the defamatory content was published in the ordinary course of business and without actual malice. Given that the publication appeared to be within the ordinary course of business, the court held that John Fairfax Publications could be liable for the defamatory statements. Consequently, the court ruled in favour of Mr Waters, awarding him damages for the harm caused by the publication.

Orders