Category Archives: Defamation

Rogers v Nationwide News Pty Ltd [2003] HCA 52 | 11 September 2003

ON 11 SEPTEMBER 2003, the High Court of Australia delivered Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327; 201 ALR 184; 77 ALJR 1739 (11 September 2003).

The Daily Telegraph had reported on a 1996 Federal Court decision of Justice Hill regarding a tax assessment of the interest component of a 1990 damages award by the NSW Supreme Court in the amount of $808,564.38 to Maree Lynette Whitaker in her action against eye surgeon Dr Christopher Rogers.

Appeals against the 1990 decision were dismissed by the NSW Court of Appeal and High Court of Australia. The High Court decision of Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992) is a well known decision regarding negligence arising from failure to warn of inherent but remote risks as opposed to negligence in the recommendation of the procedure or the manner in which the procedure is performed. Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.

In reporting on the 1996 decision, the Daily Telegraph referred to Ms Whitaker as being blinded by Dr Roger’s negligence, imputing that he had been negligent in the performance of the surgery.

The High Court in Rogers v Nationwide News Pty Ltd held that the Daily Telegraph’s reference to the decision of Rogers v Whitaker was not a fair report of court proceedings and had defamed Dr Rogers by adding to what was said by Justice HIll. The court held that the story was not entitled to the defence of qualified privilege.

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Dank v Cronulla Sutherland District Rugby League Football Club Ltd

ON 28 AUGUST 2014, the NSW Court of Appeal dismissed a summons for leave to appeal by Stephen Dank against orders of the Supreme Court of NSW to dismiss his defamation claims against two of six defendants (the Cronulla Sharks club and their chairman) and struck out his claim against a journalist.

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Lange v Australian Broadcasting Corporation (“Political Free Speech case”) [1997] HCA 25 | 8 July 1997

ON 8 JULY 1997, the High Court of Australia delivered Lange v Australian Broadcasting Corporation (“Political Free Speech case”) [1997] HCA 25; (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818 (8 July 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/25.html

The court re-examined it’s earlier decisions of Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211; (1994) 124 ALR 80 (1994) Aust Torts Reports 81-298 (12 October 1994) http://www.austlii.edu.au/au/cases/cth/HCA/1994/45.html and Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297 (12 October 1994) http://www.austlii.edu.au/au/cases/cth/HCA/1994/46.html.

Implied from the text and structure of the Constitution is a freedom of communication between the public concerning government or political matters. The freedom  restricts legislative and executive powers but does not confer individual rights and freedoms. Accordingly, there is no constitutional freedom of communication defence to a defamation action as had been previously held in Stephens and Theophanous. However, the common law provides a defence of qualified privilege to defamation actions involving government or political matters provided that the comment is reasonable and not malicious.

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Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 | 27 June 2001

ON 27 JUNE 2001, the Supreme Court of NSW delivered Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510.

http://www.lawlink.nsw.gov.au/scjudgments/2001nswsc.nsf/00000000000000000000000000000000/1d02bf783776f483ca256a790016cb6f?opendocument

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McDonald’s Corporation v Steel & Morris (“McLibel case”) | 19 June 1997

ON 19 JUNE 1997, the English High Court delivered McDonald’s Corporation v Steel & Morris [1997] EWHC QB 366.

http://www.bailii.org/ew/cases/EWHC/QB/1997/366.html

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Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31

ON 16 JUNE 1993, the High Court of Australia delivered Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31; (1993) 178 CLR 44 (16 June 1993).

The court held that an award of damages for defamation is for three purposes: (1) consolation for personal distress brought on by the publication (2) reparation for harm done to personal and/or professional reputation and (3) vindication of reputation.

http://www.austlii.edu.au/au/cases/cth/HCA/1993/31.html

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Jones And Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19

Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 (27 April 2011).


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Jones v Sutton [2004] NSWCA 439

ON 26 NOVEMBER 2004, the NSW Court of Appeal delivered Jones v Sutton [2004] 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.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2004/439.html

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 [1977] 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 [1979] 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 [1961] 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 [1977] 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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Rogers v Nationwide News Pty Ltd [2003] HCA 52

ON 11 SEPTEMBER 2003, the High Court of Australia delivered Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327; 201 ALR 184; 77 ALJR 1739 (11 September 2003).

The Daily Telegraph had reported on a 1996 Federal Court decision of Justice Hill regarding a tax assessment of the interest component of a 1990 damages award by the NSW Supreme Court in the amount of $808,564.38 to Maree Lynette Whitaker in her action against eye surgeon Dr Christopher Rogers.

Appeals against the 1990 decision were dismissed by the NSW Court of Appeal and High Court of Australia. The High Court decision of Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992) is a well known decision regarding negligence arising from failure to warn of inherent but remote risks as opposed to negligence in the recommendation of the procedure or the manner in which the procedure is performed. Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.

In reporting on the 1996 decision, the Daily Telegraph referred to Ms Whitaker as being blinded by Dr Roger’s negligence, imputing that he had been negligent in the performance of the surgery.

The High Court in Rogers v Nationwide News Pty Ltd held that the Daily Telegraph’s reference to the decision of Rogers v Whitaker was not a fair report of court proceedings and had defamed Dr Rogers by adding to what was said by Justice HIll. The court held that the story was not entitled to the defence of qualified privilege.

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Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

ON THIS DAY in 2002, the NSW Court of Appeal delivered Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2002/419.html

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