Chesterton v Radio 2UE Sydney Pyt Ltd [2010] NSWSC 47 | Case summary

JUDGMENT 1 HER HONOUR: This is an action for defamation brought by Mr Ray Chesterton over remarks made on Radio Station 2UE on the John Laws Morning Show. The matter complained of was broadcast on 8 August 2005 and the proceedings are accordingly governed by the Defamation Act 1974, which has since been repealed. 2 On 18 July 2007, following a trial before Simpson J and a jury in accordance with s 7A of that Act, the jury determined that each of eight imputations pleaded by Mr Chesterton was carried by the matter complained of and was defamatory. Following unsuccessful appeals by the defendant against those determinations, it remains for the Court to determine the issues that arise as to defences and damages in accordance with s 7A(4) of the Act. 3 The hearing of the issues reserved for the Court under s 7A(4) commenced before me yesterday. At the outset of the hearing Mr Evatt, who appears with Mr Rasmussen for Mr Chesterton, called on a notice to produce documents relating to the issue of the extent of publication of the matter complained of. Mr McHugh SC, who appears with Ms Amato for the defendant company, indicated that, in so far as the notice seeks documents relating to publication within the State of New South Wales, the only document to be produced in response to the call had already been provided informally to Mr Chesterton's solicitor. Mr McHugh otherwise sought to have the notice set aside in so far as it seeks documents relating to publication outside New South Wales. 4 After hearing argument on that issue, I ruled that the defendant was not required to produce any document in relation to publication of the matter complained of outside the State of New South Wales. These are my reasons for making that ruling. 5 As noted by the High Court in Dow Jones & Co v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [25], the tort of defamation is concerned with publications causing damage to reputation. It is only upon the communication of defamatory matter that harm to reputation is done, and it is for that reason that publication to a third person is an essential element of the cause of action. Each separate publication is potentially actionable as a separate cause of action, subject to any defences that may be available in respect of the particular publication. 6 The legislation that governs these proceedings altered the common law as to the respective functions of the Court and the jury in the determination of those issues. Unfortunately, although publication is the foundation of the establishment of a defamation claim, that issue was not expressly allocated to either the Court or the jury in the relevant provisions. It must be accepted, however, that by necessary implication the 1974 Act (as it stood immediately before its repeal) conferred the function of determining the question of publication on the jury. Section 7A(3) of the Act provided that the jury was to determine whether the matter complained of carried the imputation pleaded by the plaintiff and, if it did, whether the imputation was defamatory. 7 Section 7A(4) provided (my underlining): (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. 8 The section accordingly assumes that the jury will have made a determination that the matter complained of "was published by the defendant" as a pre-condition to the performance of the functions allocated to the Court under s 7A(4): cf Cinevest Limited v Yirandi Productions Limited [2001] NSWCA 68 at [20] per Spigelman CJ; Meagher and Handley JJA agreeing. Implicitly, on that basis, if proceedings relating to a cause of action governed by the 1974 Act are tried before a jury, any factual issue as to whether the matter complained of was published by the defendant must be determined by the jury. 9 In the present case, publication within NSW was admitted but a factual issue was raised on the pleadings as to whether the matter complained of was published by the defendant outside the State of New South Wales. By paragraph 3 of the second further amended statement of claim, the plaintiff alleged that the defendant "caused [the matter complained of] to be broadcast in New South Wales and in the other States and Territories of the Commonwealth". In answer to that allegation, the defendant admitted that it broadcast words substantially the same as those pleaded in the matter complained of in New South Wales, but did not otherwise admit the matters alleged. 10 Accordingly, since the allegation of publication outside New South Wales was not admitted on the pleadings it had (if maintained) to be proved by Mr Chesterton. The critical question raised by the defendant's objection to the notice to produce is whether that was a contest as to the issue of publication, and therefore one reserved for the jury, or one that goes "only to damages", thus falling within the functions of the Court under s 7A(4). Mr McHugh submitted that it was an issue that had to be determined (if at all) by the jury in the trial before Simpson J and that, since it was not, it is no longer open to Mr Chesterton to obtain an award of damages in respect of any such publication.

11 Mr Evatt refuted that contention. He submitted that the only task for the jury is to decide whether the matter complained of "was published" by the defendant. Mr Evatt submitted that it has always been an issue for the Court to determine the extent of publication as a matter going to damages. He stated that the inter-state publications pleaded in the present case are relied upon only as to that issue (rather than as discrete causes of action). 12 In order to analyse those contentions, it is necessary to consider what is comprehended in the notion of the so-called extent of publication. To say that extent of publication is a matter that goes to damages is a convenient but incomplete, and ultimately inaccurate, statement of principle. Strictly speaking, for the reasons explained in Gutnick, publication of defamatory matter to a large audience may give rise to multiple separate causes of action but, so long as each arises within the same territorial jurisdiction, it is expedient to deal with questions of defences and damages as though there were a single, far-reaching publication (the proliferation of causes of action was controlled under the 1974 Act by the power in s 9(5) of that Act to take a single verdict in respect of all causes of action relied upon; see also s 8 of the Defamation Act 2005). 13 Where, however, a plaintiff seeks to rely upon publication extending beyond the territorial border of the jurisdiction in which the claim is brought, what is identified is in truth a discrete tort (or series of torts) committed outside that jurisdiction. The term "extent of publication" tends to obscure that fact. 14 Mr McHugh accepted, as submitted by Mr Evatt, that for many years in this State, publication outside the State was treated as being capable of going only to damages rather than as a separate cause of action. Thus, in Toomey v Mirror Newspapers Limited (1985) 1 NSWLR 173 Hunt J said (at 184F): "In my view, the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere." 15 Mr McHugh submitted, correctly in my view, that since the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2002) 203 CLR 503, that can no longer be regarded as a permissible approach. The correctness of the principle stated by Hunt J in Toomey (set out above) was considered by Gummow J in David Syme & Co Limited v Grey (1992) 38 FCR 303 at 322-327. His Honour concluded (at 327.6): "Alternatively, [the decision in Toomey ] may be understood, as the respondent would have it, as authority for the courts of the forum to recognise and enforce extraterritorial rights arising from the commission of civil wrongs outside the jurisdiction (something to which the rule in Phillips v Eyre is directed) by awarding damages for harm to reputation sustained by publication elsewhere, regardless of whether that injury was wrongful there. If that be the correct reading of it, then, in my view, the decision should not be followed." 16 As observed by Mr McHugh, the reasoning in the joint judgment in Pfeiffer implicitly approves that as a correct statement of principle. Pfeiffer holds that, in respect of a tort alleged to have been committed in a State or Territory other than that in which proceedings are brought, the law to be applied by the Court hearing the claim governing all questions of substance is the law in which the tort was committed: at [120]. 17 It follows, in my view, that in respect of a publication outside New South Wales, this Court cannot award damages for harm to reputation "regardless of whether that injury was wrongful there". The defendant must have an opportunity to defend the claim in accordance with the law of that jurisdiction, which includes not only the common law of Australia but also any applicable legislation of the State or Territory concerned. 18 Accordingly, I do not think that it is open to the plaintiff to rely on publication outside New South Wales as going only to damages. Further, I accept, as submitted by Mr McHugh, that to the extent that any extra-territorial publication was ever sought to be relied upon as a separate cause of action, that ship has sailed (to adopt Mr McHugh's expression), since no question as to publication was left to the jury. 19 For those reasons, I ruled that the defendant should not be required to produce documents in response to the notice to produce dated 3 February 2010 to the extent that it seeks production of documents relating to publication of the matter complained of outside the State of New South Wales. **********

Chesterton v Radio 2UE Sydney Pyt Ltd

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Judgment (13 paragraphs)

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Cases Cited (7)

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