John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164

John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164

The Court held that all pleaded imputations (a)-(h) were properly characterised as comment rather than statements of fact, given the judgmental language, context, and publication on an opinions page. However, the defence of comment under the Defamation Act 1974 (NSW) only succeeded for imputations (c), (f), (g), and (h), as these could reasonably be based on the material found to be proper material for comment, while other imputations could not. Both qualified privilege (common law and statutory) and any proposed extension to cover broader judicial commentary were found not to apply to protect the defendant here, primarily because publication was not reasonable and because privilege does...

Jurisdiction
Australia
Judgment Date
17 May 2005
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court (common Law Division) on Defamation Dispute, Appellate Decision on Fact/comment Distinctions, Defences, Outcome and Remittal for Damages Reassessment
Outcome
Appeal allowed in part; judgment for appellant in respect of some imputations and for respondent in others; remitter for reassessment of damages.
Legal Topics
['defamation' 'fair Comment' 'qualified Privilege' 'freedom of Expression' 'reassessment of Damages']
['tort Law' 'media Law'] ['defamation' 'fair Comment' 'qualified Privilege' 'freedom of Expression' 'reassessment of Damages']

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court (common Law Division) on Defamation Dispute, Appellate Decision on Fact/comment Distinctions, Defences, Outcome and Remittal for Damages Reassessment

Legal Issues

  1. 1 ["Whether the article's imputations were statements of fact or comment" 'Whether the defence of comment was available to the defendant' 'Whether the comments were based on proper material for comment under the Defamation Act 1974 (NSW)' 'Availability of qualified privilege (including Lange privilege) for discussion about judicial officers' 'Appropriate assessment of damages']

Ratio Decidendi

The Court held that all pleaded imputations (a)-(h) were properly characterised as comment rather than statements of fact, given the judgmental language, context, and publication on an opinions page. However, the defence of comment under the Defamation Act 1974 (NSW) only succeeded for imputations (c), (f), (g), and (h), as these could reasonably be based on the material found to be proper material for comment, while other imputations could not. Both qualified privilege (common law and statutory) and any proposed extension to cover broader judicial commentary were found not to apply to protect the defendant here, primarily because publication was not reasonable and because privilege does...

Court Disposition

Appeal allowed in part; judgment for appellant in respect of some imputations and for respondent in others; remitter for reassessment of damages.

Orders

  • ['Appeal allowed in part.' 'Set aside the orders of Smart AJ.' 'Verdict for appellant/defendant in respect of imputations (c), (f), (g) and (h).' 'Verdict for respondent/plaintiff in respect of imputations (a), (b), (d) and (e).' 'Reserve further consideration of the questions as to quantum of damages and costs.'...