JONES v. SUTTON [2004] NSWCA 439

JONES v. SUTTON [2004] NSWCA 439

The trial judge erred by conflating the test for s.13 ('not likely to suffer harm') with the incorrect question of whether harm was in fact suffered, and by focusing on considerations irrelevant to the prospective assessment required by s.13. The correct approach, as reaffirmed, is a prospective assessment of the circumstances of the publication, including content and likelihood of republication, to determine whether there was a real possibility of harm. Applying this, the circumstances in the three publications were such that the appellant was likely to suffer harm, so the s.13 defence was not made out.

Parties
Appellant: Darren Gregor Jones; Respondent: Ruth Sutton
Jurisdiction
Australia
Judgment Date
26 November 2004
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Defamation Act 1974 (nsw) S.13, Test for Likelihood of Harm, Relevance of Reputation to S.13 Defence, Burden of Proof for S.13, Damages for Defamation, Grapevine Effect/republication
Defamation Defamation Act 1974 (nsw) S.13 Test for Likelihood of Harm Relevance of Reputation to S.13 Defence Burden of Proof for S.13 Damages for Defamation Grapevine Effect/republication

Case Brief

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Parties

Darren Gregor Jones

Appellant

Ruth Sutton

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 What is the correct test for the defence of 'not likely to suffer harm' under s.13 of the Defamation Act 1974 (NSW)?
  2. 2 Whether the trial judge applied the correct test for s.13 and properly considered the relevant circumstances
  3. 3 Role of reputation in s.13 defence

Ratio Decidendi

The trial judge erred by conflating the test for s.13 ('not likely to suffer harm') with the incorrect question of whether harm was in fact suffered, and by focusing on considerations irrelevant to the prospective assessment required by s.13. The correct approach, as reaffirmed, is a prospective assessment of the circumstances of the publication, including content and likelihood of republication, to determine whether there was a real possibility of harm. Applying this, the circumstances in the three publications were such that the appellant was likely to suffer harm, so the s.13 defence was not made out.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Set aside the verdict and orders made by the trial judge.