Whelan v John Fairfax Publications & 2 Ors [2000] NSWCA 48

New South Wales Court of Appeal

CITATION : Whelan v John Fairfax Publications & 2 Ors [2000] NSWCA 48 FILE NUMBER(S) : CA 40606/99 HEARING DATE(S) : 13 March 2000 JUDGMENT DATE : 13 March 2000

Appellant: Paul Francis Whelan PARTIES : Respondent: John Fairfax Publications 2nd Respondent: Darren Goodsir 3rd Respondent: Heath Gilmore JUDGMENT OF : Meagher JA at 1; Beazley JA at 8; Stein JA at 9

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC 20501/98 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :

COUNSEL : Appellant: T K Tobin QC / P W Gray Respondent: S Rares SC SOLICITORS : Appellant: Jones Staff & Co Respondent: Freehill Hollingdale & Page CATCHWORDS : Defamation - alleged misuse of power - preferential treatment - where individual not under investigation but entire body he represented - no evidence against individual - individual has not been defamed DECISION : 1. Appeal dismissed with costs.; 2. Set aside the orders of the court below.; 3. Grant of liberty to replead.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA40506/99

MEAGHER JA BEAZLEY JA STEIN JA

13 MARCH 2000

PAUL FRANCIS PATRICK WHELAN v JOHN FAIRFAX PUBLICATIONS & 2 ORS. JUDGMENT

1 MEAGHER JA: This is an appeal by Mr P F P Whelan in a defamation action from a judgment of Dunford J given on 28 June 1998. 2 The order his Honour made was pursuant to a trial under s 7A(1) of the Defamation Act 1974 where his Honour determined that none of the matters complained of in the amended statement of claim were reasonably capable of carrying the imputations pleaded by the plaintiff. 3 The imputations pleaded were six in number, each of which was an imputation that Mr Whelan, who is Minister of Police, mis-used his position in some way. 4 The gist of his Honour's reasoning I think may be found in paragraph 21 of his Honour's judgment which is in the following terms:- "Once again the plaintiff's difficulty is that there is no suggestion that he is being investigated or that he has been in any way involved in securing preferential treatment for his hotel, that he caused evidence to be suppressed, that he condoned violence or other unlawful activity at the hotel or mis-used his powers as police minister to cover up misconduct at the hotel. Notwithstanding the reference in the heading to 'Whelan Hotel' it is the police who are said to be under investigation not the plaintiff." 5 I respectfully agree with those words of his Honour and for the reasons given by his Honour I would dismiss the appeal with costs. 6 At the same time I would give the appellant liberty to file a further amended statement of claim containing further imputations if he wishes, that statement of claim to be filed within fourteen days. 7 Perhaps the orders of the Court ought be framed slightly differently in that there be a grant of liberty to re-plead and an order that otherwise the appeal is dismissed. In either event the appellant should pay the respondents' costs. 8 BEAZLEY JA: I agree. 9 STEIN JA: I also agree. 10 MEAGHER JA: In addition to the orders the Court has already made the Court will make one additional order, namely, to set aside his Honour's verdict insofar as it is inconsistent with any of the orders we have made today.