O'SHANE v FAIRFAX PUBLICATIONS PTY LTD

CITATION : O'SHANE v FAIRFAX PUBLICATIONS PTY LTD [2002] NSWSC 807 FILE NUMBER(S) : SC 20527 OF 2000 HEARING DATE(S) : 3 September 2002 JUDGMENT DATE : 11 September 2002

R Weaver (Plaintiff) COUNSEL : W Nicholas QC (Defendant) Aitken McLachlan & Thorpe (Planitiff) SOLICITORS : Freehills (Defendant) CATCHWORDS : Defamation Act 1974 - s48 - mitigation of damages - case particularised as to another action on publication to same purport or effect - requirement for discovery LEGISLATION CITED : Defamation Act 1974 Carson v John Fairfax & Anor (1992-3) 178 CLR 44 Dingle v Associated Newspapers Ltd [1964] AC 371 CASES CITED : Harris v Perkins, 1 April 1993 [1993] A Def R 42,537 Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR 14 Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223 DECISION : See paragraph 24

(c) has received or agreed to receive compensation, for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings . 5 For the plaintiff it is conceded that the defamation in the 2KY action is in respect of another publication of matter to the same purport or effect as the matter the subject of the present proceedings. 6 It is to be taken that the plaintiff in her list of documents has discovered no material relating to the matter raised in paragraph (2) of the defendant's particulars in mitigation of damages. 7 The defendant accordingly seeks an order pursuant to SCR Pt 23 r 3. 8 It is desirable to review the function and purpose of s48. 9 Section 48 reproduces the substance of s 24 of the 1958 Defamation Act which provision was the subject of consideration in Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223. In that case (in which liability was admitted) the full court was concerned with directions given to the jury by the trial judge and at 229 Herron CJ said: "At the trial evidence was admitted of a copy of an issue of the Sunday Telegraph, also dated 10 February 1963, which is to the same purport as the articles sued upon, even though not in identical terms. The jury were also informed, as the fact was, that the respondent had recovered a verdict against Australian Consolidated Press Ltd, the publishers of the Sunday Telegraph for £15,000 in respect of the article in question. They were also told that an appeal was pending. His Honour rejected questions designed to show on what basis the former jury may have computed the damages. The appellant submits that, as to this, his Honour was in error and that he should have allowed evidence to be given that the respondent alleged malice against the defendant arising out of its conduct in the former action and that the former jury were not informed of the action brought against the present appellant. In my opinion his Honour was in no error in confining the issue as to s 24 as he did. The section is a difficult one to apply and more difficult still to explain to a jury. Its exact application in a given case is not easy even to a lawyer. One thing is clear to my mind and that is, that it is better to put the matter before the jury in general terms and not to make the difficult subject more complex still by attempting to speculate on possible considerations which could explain the first verdict. To explain the perspective of the former verdict is difficult enough without inviting the second jury to retry the issues of another action. The purpose of the section was correctly explained to the jury. They were directed in effect that the defendant must answer fully in damages to the extent that its publication has brought about damage to reputation, but for the damage solely caused by its publication. There may be an area where damage is suffered by the joint operation of two different libels. The section is designed to permit evidence to be given with the object of preventing a plaintiff receiving double compensation for that sort of damage. His Honour read to the jury the following passage from the speech of Lord Reid, delivered in the House of Lords in 1963, in the case of Lewis v Daily Telegraph Ltd [1964] AC 254 at 261. "In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment." Lord Reid had prefaced this passage by the following statement: "Here there were similar libels published in two national newspapers on the same day and each has to be dealt with by a different jury. If each jury were to award damages without regard to the fact that the plaintiffs are also entitled to damages against the other newspaper, the aggregate of the damages in the two actions would almost certainly be too large. Section 12 of the Defamation Act 1952, is intended to deal with that" ".