Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd

Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd - [2008] NSWDC 77 - NSWDC 2008 case summary — Zoe

[5]

Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Capital and Counties Bank Ltd v George Henty & Sons [1881-5] All ER Rep 86 Coleman v The Shell Co of Australia Ltd (1943) 45 SR 27 Crampton v Nugawela (1996) 41 NSWLR 176 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24 Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Don v Lippmann (1837) 5 Cl & Fin 1 English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 Farquhar v Bottom [1980] 2 NSWLR 380 Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 Hore-Lacy v David Syme & Co Ltd [1998] VSC 96 Hore-Lacy v David Syme & Co Ltd [1999] VSC 36 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Lewis v Daily Telegraph Ltd [1964] AC 234 CASES CITED: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 May v TCN Channel Nine Pty Ltd (Supreme Court of NSW, case number 20199 of 2006) Minister for Army v Parbury Henty and Co (1945) 70 CLR 459 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Moselmane v Jones (District Court of NSW, Gibson DCJ, 14 August 2002, unreported) Morgan v Odhams Press Ltd [1971] 2 All ER 1156 O'Connor v Nationwide News Pty Ltd (1995) 128 FLR 61 Obeid v Australian Broadcasting Corporation (District Court of NSW, Gibson DCJ, 28 March 2003) Orsborn v John Fairfax Publications Pty Ltd (Supreme Court of NSW, case number 20228 of 2004) Parker v John Fairfax & Sons Ltd (Supreme Court of NSW, Hope, Samuels and Mahoney JJA, 30 May 1980, unreported) Perkins v Harris [1995] NSWCA 364 Plato Films Ltd v Speidel [1961] AC 1090 Poyser v Minors (1881) 7 QBD 329 Qureshi v John Fairfax Publications Pty Ltd (Supreme Court of NSW, case number 20155 of 2006) Robinson v Laws & Anor [2001] QCA 122 Sleeman v Nationwide News Pty Ltd [2002] NSWSC 1100 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Talbot v Nationwide News Pty Limited [2006] NSWDC 59 Waterhouse v Australian Broadcasting Corporation (1990) A Def R 50-070 (Supreme Court of NSW, Hunt J, 13 June 1990) Wm Cook Pty Ltd v Read [1940] VLR 214 Zollner Ltd v Municipal Council of Sydney (1917) 17 SR (NSW) 164

[26]

Prior to the introduction of s 7A, a number of cases considered the issue of the transfer of proceedings and the question of procedural rules of the forum. The first of these was Waterhouse v Australian Broadcasting Corporation (1990) A Def R 50-070 (Supreme Court of NSW, Hunt J, 13 June 1990). A defamation case had been transferred from the Australian Capital Territory to the Supreme Court of New South Wales. The question for determination was the appropriate procedural conduct of the case in New South Wales. A similar argument was put on behalf of the plaintiff that the right to a trial by a judge without a jury was a substantive one which had been transferred to the court with the actions themselves, and that it was wrong to characterise such a right as merely a rule of procedure. Hunt J did not accept this submission and went on to say: "The mode of trial with or without a jury is pre-eminently a question of procedure that is, it concerns the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines that right: Poyser v Minors (1881) 7 QBD 329 at: 333. And that is so whether the word "procedure" be given a wide or a narrow sense: cf Coleman v The Shell Co of Australia Ltd (1943) 45 SR 27 at 32. In the context of the conflict of law rules, the word "procedure" embraces the whole of the law of evidence and the law relating to legal remedies and the enforcement of legal rights: Wm Cook Pty Ltd v Read [1940] VLR 214 at 219. The statement by Lush LJ in Poyser v Minors to which I have already referred was approved by Latham CJ in Minister for Army v Parbury Henty and Co (1945) 70 CLR 459 at 489. In that case, the right of appeal from a judge of this Court to the Full Court given by s 5(6) of the Supreme Court Procedure Act 1900 was held to be a law "relating to procedure" within the meaning of s 79 of the Judiciary Act 1903 (the context being "the laws of each State, including the laws relating to procedure, evidence and the competency of witnesses"). The right of appeal within a court, Latham CJ said, was not a law creating a substantive right; it related only to the method of establishing or enforcing that right. It was therefore a procedural matter. The right to a hearing with or without a jury must similarly be a law relating to procedure; and see Don v Lippmann (1837) 5 Cl and F1 at 14-15 [7 ER 303 at 308]. The plaintiffs have argued that, as that right is dealt with in a statute both in the Australian Capital Territory and in New South Wales, rather than in the procedural rules made pursuant to those statutes, the characterization should nevertheless be different. That circumstance, however, makes no difference to the proper characterization of the right in question. The right of appeal considered in the Parbury Henty Case was similarly dealt with in a statute. I am satisfied that, in accordance with par (c) of s 11(1), the mode of trial (whether the claims should be heard with or without a jury) is to be such as is considered appropriate in the circumstances."

[56]

To the ordinary reasonable reader, these two plaintiffs, in business together doing the same work while being brothers and have names that sound very similar, are rather like Tweedledum and Tweedledee. It is important to allow for the ordinary reasonable reader of such an article to engage in a certain amount of loose thinking and reading between the lines, in accordance with the test described by Hunt CJ at CL in Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165. Hunt CJ at CL explained these principles as follows: "The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: Capital and Counties Bank Ltd v George Henty & Sons (at 744, 771); English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452-453. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book ( Morgan v Odhams Press Ltd (at 1254, 1269)), and the less the degree of accuracy which would be expected by the reader: ibid at 1270; Steele v Mirror Newspapers Ltd (at 373). The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd (at 1245); Steele v Mirror Newspapers Ltd (at 373); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Parker v John Fairfax & Sons Ltd (at 8). There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374. The principles stated in these last two paragraphs - as encapsulated in Farquhar v Bottom (at 385-386) - have been adopted in this Court: see, eg, John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 719; Crampton v Nugawela (1996) 41 NSWLR 176."

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