O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52

O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52

The trial judge wrongly withdrew from the jury the issue whether the article contained defamatory statements of fact. The references to waste and dishonesty were reasonably capable of being read as alleging that the appellant dishonestly suppressed the roles of other actors to enhance his own role, rather than merely expressing comment on the production. Because the jury should have determined whether the words were fact or comment and, if comment, whether they were fair, the trial miscarried and a new trial was required.

Jurisdiction
Australia
Procedural Posture
Libel Action; Appeal by Special Leave / Appeal to the High Court of Australia From an Order of the Court of Appeal of the Supreme Court of New South Wales Dismissing an Appeal From a Verdict and Judgment for the Defendant
Outcome
Appeal allowed with costs; new trial ordered.
Legal Topics
['libel' 'fair Comment' 'statements of Fact and Expressions of Opinion' 'criticism of Public Performance' 'jury Directions']
['defamation'] ['libel' 'fair Comment' 'statements of Fact and Expressions of Opinion' 'criticism of Public Performance' 'jury Directions']

Case Brief

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Procedural Posture

Libel Action; Appeal by Special Leave / Appeal to the High Court of Australia From an Order of the Court of Appeal of the Supreme Court of New South Wales Dismissing an Appeal From a Verdict and Judgment for the Defendant

Legal Issues

  1. 1 ["Whether the trial judge erred in ruling as a matter of law that the whole article was comment on the plaintiff's production of Othello and contained no defamatory statements of fact." 'Whether the passages alleging waste and dishonesty were reasonably capable of being regarded by the jury as defamatory statements of fact rather than merely comment.' 'Whether a jury could reasonably regard the allegation of dishonesty as unfair comment.' 'Whether evidence of the actual public performance could be relevant to whether the publication was protected as fair comment under the Defamation Act, 1958 N.S.W.']

Ratio Decidendi

The trial judge wrongly withdrew from the jury the issue whether the article contained defamatory statements of fact. The references to waste and dishonesty were reasonably capable of being read as alleging that the appellant dishonestly suppressed the roles of other actors to enhance his own role, rather than merely expressing comment on the production. Because the jury should have determined whether the words were fact or comment and, if comment, whether they were fair, the trial miscarried and a new trial was required.

Court Disposition

Appeal allowed with costs; new trial ordered.

Orders

  • ['Order of the Supreme Court of New South Wales set aside.' 'In lieu thereof, order that the appeal to that Court be allowed with costs.' 'Verdict for the defendant set aside.' 'There be a new trial of the action.']