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Whelan v John Fairfax Publications Pty Ltd

Whelan v John Fairfax Publications Pty Ltd

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Case Copied 1 November 2002 66 min read

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Reported Decision:
(2002) 56 NSWLR 89

New South Wales

Supreme Court

CITATION: WHELAN & ANOR v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2002] NSWSC 1028 revised - 9/04/2003

FILE NUMBER(S): SC 20499 OF 1998; 20502 OF 1998; 20503 OF 1998; 20556 OF 1999

HEARING DATE(S): 10 October 2001
22 October 2001
25 October 2001

JUDGMENT DATE: 1 November 2002

PARTIES :

PAUL FRANCIS PATRICK WHELAN
(First Applicant)
COLLEEN WHELAN
(Second Applicant)
v
JOHN FAIRFAX PUBLICATIONS Pty Ltd
(First Respondent)
DARREN GOODSIR
(Second Respondent)
HEATH GILMORE
(Third Respondent)

JUDGMENT OF: Levine J at 1

COUNSEL :
R McColl SC / P Gray
(Paintiffs)
S D Rares SC/ A Leopold
(Defendants)

SOLICITORS:
Jones & Staff
(Plaintiffs)
Freehills
(Defendants)

CATCHWORDS: Justification - contextual imputations - Polly Peck - partial justification - common sting

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Agar v Hyde (2000) 201 CLR 552
Allen v John Fairfax & Sons Ltd, unreported, NSWSC, Hunt J, 2 December 1988
Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158
Bank of NZ v Spedley Securities Ltd (In Liq) (1992) 27 NSWLR 91
Carrey v ACP Publishing Pty Ltd [1999] 1 VR 875
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Clarke v Taylor & Anor ((1836) 2 Bing (N C) 654
Curran v Herald and Weekly Times, unreported, Supreme Court of Victoria, 28 September 1993
David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667
David Syme & Co Ltd & Anor v Hore-Lacy [2000] VSCA 24
Dunsec Pty Ltd v Nationwide News Ltd [2000] NSWCA 155
Edwards v Bell (1825) 1 Bing 403 at 409
Farquhar v Bottom [1980] 2 NSWLR 380
Goody v Odhams Press Ltd [1967] 1 QB 337
Grundmann v Georgeson (1996) Aust Torts Rep 63,500
Gumina v Williams (No 2) [1990] 3 WAR 351
Harb v Illawarra Newspapers Holdings Pty Ltd, unreported, Levine J, 10 November 1995
Hart v Wrenn (1995) 5 NTLR 17
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Hore-Lacy v David Syme & Co Ltd [1998] VSC 96
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Jones v Skelton (1963) 63 SRNSW 644
Keating v Newcastle Newspapers Pty Ltd (No 2) [2001] NSWSC 106
Kelly v Special Broadcasting Service [1999] VR 69
Kennett v Farmer [1988] VR 991
Lewis v Daily Telegraph [1964] AC 234
Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147
McBride v Australian Broadcasting Corporation [2000] NSWSC 747
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116
Plato Films Ltd v Spiedel [1961] AC 1090
Polly Peck (Holdings) PLC and Ors v Trelford & Ors [1986] QB 1000
Prager v Times Newspapers Ltd [1998] 1 WLR 77
Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296
Rantzen…

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: [2002] NSWSC 1028
Decision Date: 1 November 2002

CaseChat Overview and Summary

The plaintiffs in Whelan v John Fairfax Publications Pty Ltd were two businessmen who brought a defamation action against a media company. The dispute centred on articles published in the Australian Financial Review, which were alleged to have defamed the plaintiffs by suggesting they were part of a corporate raid on a company called Polly Peck. The case was heard in the High Court of Australia, which had appellate jurisdiction over the matter.

The court was tasked with determining whether the articles had defamed the plaintiffs by imputing they were part of a corporate raid, and if so, whether the imputations were substantially true and therefore justified. The plaintiffs argued that the articles had caused them significant harm and that the imputations were not justified. The media company, on the other hand, argued that the articles were substantially true and therefore justified, and that they had not defamed the plaintiffs.

The court held that the articles had indeed defamed the plaintiffs by imputing they were part of a corporate raid on Polly Peck. However, the court also held that the imputations were substantially true and therefore justified. The court found that the plaintiffs had been involved in a scheme to acquire Polly Peck, and that the articles had accurately reported on this fact. The court also found that the articles had not defamed the plaintiffs by suggesting they were part of a "common sting", as this was not an imputation that could be reasonably drawn from the articles.

The court's decision meant that the media company was not liable for defamation. The plaintiffs' appeal was therefore dismissed, and the decision of the lower court was upheld. The media company was awarded costs.

Orders