Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64

ORDER Appeal dismissed with costs.

Cur. adv vult.

The following written judgments were delivered:—

1993, Nov 17 Mason C.J., Brennan, Deane, Dawson, Toohey and Gaudron JJ.

This appeal raises two questions concerning the interpretation of s. 377(8) of the Criminal Code ("the Code") contained in the Criminal Code Act 1899 Q. Section 377(8), one of the provisions of Ch. XXXV of the Code, contains the main body of the law of defamation in Queensland [1] .

1. Telegraph Newspaper Co. Ltd. v Bedford (1934), 50 C.L.R. 632, at p. 649.

The facts

In 1986, when the appellant, George Anthony Pervan, was a councillor of the Johnstone Shire Council and Chairman of its Works Committee, a member of the Parliament of Queensland made allegations in Parliament that the appellant had misapplied the Council's cyclone relief funds and that he had been "feathering his own nest". On two occasions, the Innisfail Advocate ("the Advocate"), a newspaper published by the first respondent, published a fair report of these allegations. It also published replies to the allegations. It then published on behalf of the second respondent, Herbert William Layt, in its public notices an advertisement in these terms:

Councillors feathering their own nests? Funds being misappropriated? This is doing irrepairable [sic] damage to the image of our shire. It is now more important than ever to attend the ratepayers and residents meeting at the

Grand Central Hotel

Tuesday, 12th August at 8 p.m.

The proceedings

The appellant sued the first respondent for damages, alleging that the advertisement was defamatory of him. It seems that at some stage of the proceedings the second respondent was joined as a defendant but he did not participate in the proceedings in the courts below or in this Court. By its amended defence the first respondent denied that the advertisement was defamatory and that it was defamatory of the appellant. The first respondent also pleaded defences under s. 377(5) and s. 377(8) of the Code.