Please enable JavaScript.

Coggle requires JavaScript to display documents.

Week 9 Defamation; publication of material that would make ordinary…

- - - - Born Brands v Nine Network Australia 2013 NSWCA
        It was held that a corporation had no cause of action in defamation as they employed less than 10 people
    - - O'Shane v Harbour Radio 2013 NSWCA
        Judicial officer was able to sue with regards to defamatory comments made about the P performance as a judicial officer
- - - - Fairfax media v Kermode 2011 NSWLR
        P sued claiming defamation with regards to a published article that the P had tried to influence politicians with donations to secure benefits for the P company. D claimed the imputations were substantially true, and also raised the defence of contextual truth under the NSW Def Act. In relation to the use of contextual truth the D sought to 'plead back' some of the P claimed imputations. It was held that the legislation does not allow the D to 'plead back' in relation to contextual truth
        This case has been referred to in Qld; Mizikovsky v Queensland Television 2011 QSC
        
        Plead back (not a defence allowed under legislation for establishing contextual truth);
        D would claim the truth of all defamation imputation of which the P claimed, hoping that is some were proved true they would out weigh the effect of the defamatory imputations, and the overall result that the D of contextual truth would succeed because the P reputation would not be further injured by the publication of untrue defamatory statements.
      - Partial justification is not a defence to the cause of action, which is the publication of defamatory words, it is relevant to the question of damages and may reduce the damages if proven; Herald v Popovic 2003 VSCA
  - - - Hanna v Sibbons 2010
        The D disputed a seat to SA parliament that he lost, through which a series of leaflets were distributed to the local community stating that the P had failed on crime, drug, hoons etc. The D was able to rely on the defence of qualified privilege as the court deemed that the community had a interest in receiving the information, with regards to having an informed election campaign.
      - Def Act 2005 (qld) s 30 ss(1) - (3)
        the D must show that the defamation information published in the course of giving th information to a recipient who has an interest or apparent interest in receiving the information
  - - - Also allows for this defence to be used with regards to the publishing of public documents if the information is honestly for the public or the enhancement of education
  - - - Stanton v Fell 2013 NSWCA
        D succeeded against the P with regards to an email that was published only to individuals who knew the P well, and were fully aware of the P conflicts, so it was highly unlikely that the opinions of those who had received the emails would have altered their view.
- - - - Cap on damages for non-economic loss
        
        this has raised concerns that wealthy groups can way the risk of the capped amount against a potential return
      - Cap does not apply to aggravated damages.
      - No longer possible to award punitive/exemplary damages Def Act 2005 s 37
      - Offer of amends
        
        the D has 28 days from notification to aggrieve the P through publication if the P accepts the offer they cannot then pursue a court action. If this is rejected and was a reasonable offer the D may raise this as a defence.