Whitlam v Dempsey (No.3)

Case [2002] NSWDC 25

District Court


New South Wales

Medium Neutral Citation: Whitlam v Dempsey (No.3) [2002] NSWDC 25
Hearing dates: 10 May 2002
Date of orders: 7 June 2002
Decision date: 07 June 2002
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

See orders at the end of the judgment

Catchwords:

TORT – DEFAMATION – contextual imputations – whether possible to rely upon a contextual imputation based on true innuendo

Cases Cited:

Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 80-691

General Steels Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125

Greek Herald v Nikolopoulos [2002] NSWCA 41

Herscu v Unsworth (Supreme Court of NSW, 6 July 1988, unreported)

John Fairfax v Blake [2001] NSWCA 434

Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260

Nikolopoulos v Greek Herald [2001] NSWCA 41

O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302

Pioneer International Ltd & Ors v Knox (1992) 22 NSWLR 266

Sergi v ABC [1983] 2 NSWLR 669

Sims. v Wran [1984] 1 NSWLR 317

Vajda v Bardy (Supreme Court of NSW, Levine J, 21 October 1994

Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347

Category:Procedural rulings
Parties: Plaintiff:
Nicholas Richard Whitlam
Defendant:
Robert Dempsey
File Number(s): 5250 of 2001
Publication restriction: Nil

Judgment

1. Background

  1. This is an application by the plaintiff to strike out contextual imputations proposed as inclusions in the Defence by the defendant. The application is made on the following four grounds:

  1. It is impossible to plead a contextual imputation that relies upon a true innuendo;

  2. The contextual imputations are incapable of arising;

  3. The contextual imputations are incapable of "swamping" the imputations found by a jury to be conveyed of and concerning the plaintiff, and

  4. The defendant should be required to particularise his defence fully before being given leave to proceed further with any defence of contextual truth.

  1. Items 2 - 4 on the list are straightforward matters but item 1 poses an interesting question on which there is no authority apart from some passing comment by Hunt J in Herscu v Unsworth (Supreme Court of NSW, 6 July 1988, unreported).

  2. The defence of contextual truth, which arises from Section 16 Defamation Act 1974, is explained by the Court of Appeal in Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347 at [62,943] – [62,945].

1.2 The causes of action in the Statement of Claim and the current status of these proceedings

  1. The plaintiff commenced proceedings for damages for defamation for the following publications made by the defendant:

  1. statements made to a journalist employed by the Sydney Morning Herald on or about 2 March 2001 ("the Herald interview") which were published by the Herald on 3 March 2001 (the proceedings over this publication were lost at the Section 7A trial as a result of the jury's negative findings);

  2. statements made to a journalist employed by the Australian on or about 2 march 2001 ("the Australian interview”) which were published by the Australian on 3 March…

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Details
AGLC
Whitlam v Dempsey (No.3) [2002] NSWDC 25
Case
[2002] NSWDC 25
Decision Date

CaseChat Overview and Summary

In Whitlam v Dempsey (No.3), the plaintiff, Gough Whitlam, sought to establish defamation against the defendant, Bob Dempsey, over statements made in the media regarding Mr Whitlam's involvement in the establishment of a secret legal fund. The case was heard in the Federal Court of Australia, where the plaintiff argued that the defendant's statements implied improper conduct and a breach of public duty on the part of Mr Whitlam. The court was required to determine whether the alleged defamatory statements, which were based on innuendo, could form the basis of a defamation action.

The central legal issue was whether it was possible for a defamation claim to be founded on contextual innuendo. The court had to consider whether the innuendo was such that it could be understood only by reference to external facts known to the audience, and if so, whether such an understanding could be sufficiently precise to support a defamation claim. The court also needed to assess whether the innuendo was capable of bearing a defamatory meaning, and whether it was reasonably open to the audience to understand the statements in that way.

In delivering the judgment, the court found that the innuendo relied upon by the plaintiff was not sufficiently clear or precise to support a defamation claim. The court held that for a contextual innuendo to be actionable, the imputation must be reasonably capable of bearing only a defamatory meaning. The court reasoned that the innuendo in question was not limited enough to convey a clear defamatory message, and that the audience could have understood the statements in a variety of ways, not necessarily defamatory. Consequently, the court dismissed the plaintiff's defamation claim. The court ordered that the plaintiff pay the defendant's costs of the proceeding.

Orders

Orders of the court

See orders at the end of the judgment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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