HOWELL v HAINES [1993] NSWCA 138

HOWELL v HAINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE J 9 August 1993, 9 August 1993

[1993] NSWCA 138

Clarke J This is an application for a stay of execution on a judgment given byDunford J on 22 March 1993 in the sum of $78,625 plus costs. The action in which the judgment was given was an action for libel arising out of two publications of the claimant. It was said by the opponent that the publications conveyed an imputation that he had accepted a bribe whilst an alderman in his local council.

The seriousness of the allegations made needed to be viewed against the context that the opponent had, at the relevant time, secured pre-selection for a State seat in the Parliament of New South Wales. As it transpired after the allegations were made his pre-selection was not maintained and the person who later won pre-selection won the seat.

His Honour found in the claimant's favour on the first publication on the defence of comment. However, his Honour found against the claimant on the second publication and in addition found that the opponent had been actuated by malice.

I do not propose to go to the detail of either the evidence led at the trial or the judgment, but it is, I think, of some importance to note that the allegations were made in the context that the claimant was a member of the left faction of the Australian Labour Party at the time and the opponent was, or had been, a member of the right faction. It was in this context that his Honour said that he was satisfied that the defendant was motivated by malice, in the sense of an improper purpose, namely, to hurt the right wing in general and the plaintiff in particular and to advance the political fortunes of the left wing, including possibly the defendant himself.

During the hearing of this application the claimant has attacked that conclusion and, although I have not examined the evidence and the judgment closely, it may be that he has reasonable grounds upon which to base that attack.