Evatt v Nationwide News Pty Ltd

Evatt v Nationwide News Pty Ltd - [1999] NSWCA 99 - NSWCA 1999 case summary — Zoe

[17]

A. By the plaintiff that it was imputed as a fact that she was derelict in her duties; and B. By the defendant that others alleged that she was so derelict. As I have said, the jury found that the plaintiff had established her contention. The author of the article, Leanne Younes, deposed that it was her belief that the imputation conveyed by the article was that contended for by the defendant. The jury's finding demonstrates that they accepted that was, in fact, her belief." 17 As will appear, his Honour's reasoning thereafter was premised upon the jury having found that Mrs Younes believed that the imputation conveyed by the article was that others alleged that the appellant was derelict in her duties, not the more serious imputation that in fact the appellant was derelict in her duties. In the appellant's written submissions she appeared to take issue with this, contending that the jury had made no finding in relation to what imputations the respondent or Mrs Younes intended to convey and that his Honour had "confused the jury's finding on [further] question 1 with a finding that the jury found Mrs Younes' evidence to be true other than in relation to [further] question 2". This was disclaimed in the course of submissions. Mrs Younes had given evidence to the effect to the effect that she did not intend to convey that in fact the appellant was derelict in her duties, intended to convey that a significant number of people believed that the appellant was not performing her duties on the Ivanhoe Place Residents Association to the level she was expected to, and believed the latter imputation to be true. The appellant accepted that, by its answer to further question 1, the jury had found that Mrs Younes believed in the truth of the imputation for which the respondent had contended, that others alleged that the appellant was derelict in her duties, and it was said that it was not in dispute that Mrs Younes did not intend to convey the imputation found by the jury, that the appellant was derelict in her duties as secretary of the Ivanhoe Place Residents Association.

[21]

(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right (where appropriate) by making proper inquiries and checking on the accuracy of his sources; (b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained; (c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and (d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers. The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. It is necessary to keep in mind that each of the matters referred to in par (4) are relevant to the reasonableness of the defendant's conduct; they do not raise questions independently of that issue. This is important in relation to the functions of judge and jury. If, for example, there is a dispute as to whether the defendant made a particular inquiry, that dispute is to be decided by the jury. But if there is a dispute as to whether reasonable conduct in the circumstances required inquiries to be made or as to whether the inquiries in fact made were sufficient, those disputes are to be decided by the judge as part of the ultimate question as to whether the defendant's conduct was reasonable in the circumstances." Immediately after setting out this passage his Honour said that "It is thus for me to determine whether the enquiries made by Mrs Younes prior to the writing and publication of the article were sufficient". 19 His Honour then referred to evidence from Mrs Younes that her enquiries involved her interviewing Mr Tilly and three other persons apart from the appellant (it will be recalled that the jury found in answer to further question 2 that Mrs Younes had not interviewed the appellant), and that she had available to her certain documents including complaints as to the appellant's performance as secretary of the Ivanhoe Place Residents Association Inc. He continued -

[25]

See also Hunt AJA's analysis in Morgan's case . Here Mrs Younes did have (as found by the jury) a bona fide belief that what she had written gave rise to the imputation contended for by the defendant. While that was not the imputation found by the jury her belief was otherwise and (as also found) honestly formed. That belief could not have been in any way changed by an interview with the plaintiff which may have confirmed that the matters of dereliction of duty referred to in the article were allegations made by others which were to be raised at the meeting and not matters of historical fact. It is not difficult to visualise circumstances where the failure of a journalist to interview a plaintiff prior to the publication of a defamatory article will disentitle a defendant publisher from relying on a defence of qualified privilege. Those circumstances are obviously manifold. However, the jury's finding as to the belief of Mrs Younes in this case coupled with their finding as to the defamatory imputation leads me to the conclusion that the inquiries made by Mrs Younes were sufficient to satisfy the test as outlined by Hunt A-JA in Morgan's case . In short, that inquiry of the plaintiff would not have altered Mrs Younes' belief that what she had written was true." 21 His Honour's reasoning to his conclusion is tolerably clear. He focussed upon para 4(a) in the passage from Morgan v John Fairfax & Sons Ltd (No 2), the exercise of reasonable care by making proper inquiries. With the premise of a finding that Mrs Younes believed that the imputation conveyed by the article was that others alleged that the appellant was derelict in her duties, he asked whether the failure to speak to the appellant about the subject matter of the article before it was published, as found by the jury, spelt doom for the defence of qualified privilege. He thought that it did not because it was not unreasonable to fail to interview the appellant when "interviewing the appellant would not have altered Mrs Younes' belief that what she had written was true". Her belief was that what she had written "gave rise to the imputation contended for by the defendant", that is, the imputation that others alleged that the appellant was derelict in her duties as distinct from the imputation that in fact the appellant was derelict in her duties. Her belief so understood was reasonably founded in the other inquiries which the jury must have found she had made, and interviewing the appellant would not have altered that belief because the appellant could not usefully contribute to the facts showing that others alleged dereliction in duty.

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Cases Cited (7)