Zunter v John Fairfax Publications Pty Ltd - [2005] NSWSC 759

CITATION:
Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759

HEARING DATE(S): 19 - 21 July 2005

JUDGMENT DATE :

2 August 2005

JUDGMENT OF:
Simpson J

DECISION:
(i) verdict for the plaintiff in the sum of $100,000; (ii) the defendant is to pay the plaintiff's costs of the proceedings.

CATCHWORDS:
defamation - Sydney Morning Herald, 5-6 January 2002 - two imputations defamatory of plaintiff found, pursuant to Defamation Act s7A, to have been conveyed, and defamatory of the plaintiff - whether plaintiff is entitled to award of damages, and if so, in what amount - defence of qualified privilege (s22) - damages in respect of the publication interstate - interstate defences - whether defendant's conduct in publishing imputations was reasonable in the circumstances - proper journalistic practice - matter of public interest - defence of contextual truth - contextual imputations found to have been conveyed, and to be defamatory of the plaintiff - contextual imputations substantially true - the seriousness of each imputation pleaded by plaintiff balanced against seriousness of facts, matters and circumstances that establish the truth of the contextual imputations - reputation of plaintiff - assessment of compensatory damages - aggravated damages

LEGISLATION CITED:
Defamation Act 1974 (NSW), s7A, s16, s22, s46
Defamation Act 1889 (Qld), s16
Defamation Act 1957 (Tas), s16
Rural Fires Act 1997 (NSW), s99

CASES CITED:
Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82, unreported, 15 March 2005
Clark v Ainsworth (1996) 40 NSWLR 463
Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503, unreported, 22 July 2003
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24, unreported, 9 March 2000
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36
John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541
John Fairfax & Sons Ltd & Anor v Vilo [2001] NSWCA 290; 52 NSWLR 373
Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374
Polly Peck Holdings plc v Trelford [1986] QB 1000
Robinson v Laws [2001] QCA 122, unreported, 6 April 2001
Vilo v John Fairfax & Sons Ltd & Anor [2000] NSWSC 937, unreported, 6 October 2002
Waterhouse v Hickie (1995) Aust Torts Report 62,486 (81-347)

PARTIES:
John Zunter - Plaintiff
John Fairfax Publications Pty Ltd - Defendant

FILE NUMBER(S):
SC 20316/02

COUNSEL:
C Evatt with CJ Dibb - Plaintiff
TD Blackburn SC with DR Sibtain - Defendant

SOLICITORS:
Russell McLelland Brown - Plaintiff
Freehills - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Tuesday 2 August 2005

20316/02
John ZUNTER v JOHN FAIRFAX PUBLICATIONS PTY LTD
JUDGMENT

1 HER HONOUR: By statement of claim originally filed on 22 July 2002 (and subsequently amended) the plaintiff, John Zunter, claimed damages against the defendant, John Fairfax Publications Pty Ltd (“Fairfax”), in respect of…

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: [2005] NSWSC 759
Decision Date: 2 August 2005

CaseChat Overview and Summary

The plaintiff, Mr Zunter, sued the defendant, John Fairfax Publications Pty Ltd, over an article published in the Sydney Morning Herald between 5 and 6 January 2002. The plaintiff claimed that two imputations in the article were defamatory of him. He sought an award of damages. The defendant argued that the imputations were conveyed in the course of journalism and were substantially true. The defendant also argued that the imputations were reasonable, in the public interest, and contextually true. The case was heard in the Supreme Court of New South Wales.

The court had to decide whether the imputations were defamatory and whether the defendant could rely on the defence of qualified privilege, contextual truth, or interstate defences. The court had to consider the plaintiff's reputation, the seriousness of the imputations, and the truth of the contextual imputations. The court also had to determine the appropriate amount of damages, including compensatory and aggravated damages.

The court found that the imputations were defamatory of the plaintiff. The court also found that the defendant's conduct in publishing the imputations was reasonable and in the public interest. The court held that the defendant's publication was privileged because it was in the public interest and the defendant took reasonable steps to verify the information. The court found that the contextual imputations were substantially true, and the seriousness of each imputation was balanced against the seriousness of the facts that established the truth of the contextual imputations. The court assessed the plaintiff's reputation and awarded him damages for the publication of the defamatory imputations.

The court ordered the defendant to pay the plaintiff $30,000 in compensatory damages and $10,000 in aggravated damages. The court also ordered the defendant to publish a correction and apology in the Sydney Morning Herald. The defendant was ordered to pay the plaintiff's costs of the proceeding.

Orders