REMUNERATION PLANNING CORPORATION PTY LTD and ORS v JOHN FAIRFAX GROUP PTY LTD [1991] NSWCA 237

REMUNERATION PLANNING CORPORATION PTY LTD and ORS v JOHN FAIRFAX GROUP PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 15 July 1991, 31 July 1991 [1991] NSWCA 237

Appeal from Common Law Division — Defamation proceeding Separate trial of capacity of published article to make imputation pleaded "to cheat the Government" — Whether defamatory meaning excluded by text of the article as a whole Held: open to jury to hold that article made the imputation pleaded — Desirability of leaving doubtful cases to be determined at the trial.

Mahoney JA On 18 August 1990 an article was published in the Business section of the Sydney Morning Herald under the heading "Executive windfall from FBT loophole". The article suggested (I shall use neutral terms) an arrangement for minimising the overall income tax liability of those who made use of it. The plaintiff, who was concerned in the proposing or promotion of the arrangement, sued the defendant for defamation. Its allegation is that the article made of it the following imputations:

"(a) that the plaintiff had, by promoting a tax avoidance scheme, knowingly enabled employers and employees dishonestly to cheat the Federal Government of the amount of taxation revenue to which it would otherwise have been entitled; and

(b) that the plaintiff had, by promoting a tax avoidance scheme, knowingly enabled employers and employees unfairly to avoid what would otherwise have been the amount of their liability to taxation."

The defendant accepts that it would be open to a jury to hold that the second imputation was made by the article: it submits that it would not be open to hold that the article made the first imputation. By consent, the capacity of the article to give the reader to understand the first imputation to have been made was tried separately by Hunt J. He held for the defendant and ordered that the first imputation should not go to the jury.