ON 26 NOVEMBER 2004, the NSW Court of Appeal delivered Jones v Sutton  NSWCA 439 (26 November 2004).
DEFAMATION – Defamation Act 1974 (NSW), s.13 – Defence – Test to be applied – Meaning of “Not likely to cause harm” – Irrelevance of whether harm was in fact occasioned – “Grapevine effect” – Republication – Relevance of content of publication.
DEFAMATION – Reputation – Relevance of reputation of plaintiff to s.13 defence – Knowledge of reputation of plaintiff.
DEFAMATION – Onus.
DEFAMATION – Damages – Whether harm was actually occasioned.
The court allowed an appeal of a decision of the District Court of NSW and entered judgments for the appellant with respect to defamatory publications made by the respondent on three occasions.
Per Beazley JA:
“(i) The correct test to be applied for the purposes of s.13 of the Defamation Act is whether, in the circumstances of the publication, the plaintiff was not likely to suffer harm: Morosi v Mirror Newspapers  2 NSWLR 749, Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691.
(ii) Section 13 is not concerned with whether harm was in fact occasioned, as found by the trial judge.
(iii) Although the trial judge considered that she had found that the defence had been made out on both the correct test and the test of harm suffered, her judgment focused upon considerations relevant to the incorrect test of harm suffered.
(iv) There is no inconsistency between the test stated in Morosi and Chappell and in King and Mergen Holdings Pty Limitd v McKenzie (1991) 24 NSWLR 305.
(v) Alternatively, any misstatement should be ignored.
(vi) The reputation of the plaintiff may be relevant to the s.13 defence depending upon who the recipients are of the defamatory publication and the circumstances in which it was made. It is arguable that knowledge of the reputation of the plaintiff is a special characteristic of the recipient and, for this reason, may be caught up in the circumstances of the publication: Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691; Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997).
(vii) The respondent bore the legal and evidentiary burden of establishing the defence under s.13.
(viii) The phrase “not likely to cause harm” in s.13 refers to “the absence of a real chance” or “the absence of real possibility of harm”: Tillmanns Butcheries Pty Limited v AMIEU  FCA 85; (1979) 42 FLR 331.
(ix) In relation to the “grapevine effect”, what is relevant for the purposes of s.13 is whether there is a chance of republication in circumstances where there is a likelihood of harm.
(x) Harm can occur even where a person holds final judgment in suspense: Dingle v Associated Newspaper Limited  2 QB 162. Hence, when considering the question of potentiality of harm under s.13, the fact that the recipient did not, at that time, form a final judgment, may not of itself establish the defence.
(xi) The content of the matter complained of is relevant for the purposes of s.13: Morosi v Mirror Newspapers  2 NSWLR 749. The defence is less likely to be made out where the content of the imputation is serious but it is not confined to trivial content.”
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