Whelan v John Fairfax Publications Limited & 2 Ors [2000] NSWSC 815

New South Wales Supreme Court

CITATION : Whelan v John Fairfax Publications Limited & 2 Ors [2000] NSWSC 815 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20501 of 1998 HEARING DATE(S) : 3 August 2000 JUDGMENT DATE : 18 August 2000

PAUL FRANCIS PATRICK WHELAN (Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS LIMITED PARTIES : (First Defendant)

DARREN GOODSIR (Second Defendant)

HEATH GILMORE (Third Defendant) JUDGMENT OF : Levine J

T Tobin Q.C. P Gray (Plaintiff) COUNSEL : S Rares S.C. A Abadee (Defendant) Jones Staff & Co (Plaintiff) SOLICITORS : Freehill Hollingdale & Page (Defendant) CATCHWORDS : Imputations - capacity Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 CASES CITED : Jones v Skelton (1963) SR (NSW) 644 Lewis v The Daily Telegraph Limited (1964) AC 234 Morgan v Odhams Press Limited (1971) 1 WLR 1239 DECISION : See paragraph 18

DLJ: 1 CAV [2000] NSWSC 815

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20501 of 1998

JUSTICE DAVID LEVINE

FRIDAY 18 AUGUST 2000

PAUL FRANCIS PATRICK WHELAN (Plaintiff)

v

John Fairfax Publications Limited (First Defendant)

DARREN GOODSIR (Second Defendant) HEATH GILMORE (Third Defendant)

JUDGMENT (Imputations - capacity) 1 By an Amended Statement of Claim filed on 27 March 2000 the plaintiff contends that the matter complained of published on or about 29 November 1998 carries the following imputations said to be defamatory of him. "4. (a) The plaintiff misused his position as Minister for Police to ensure that police provided no evidence to the Licensing Court when one of the plaintiff's hotels applied for and obtained a 24 hour licence, in circumstances where it would ordinarily be expected that police would do so. (b) The plaintiff misused his position as Minister for Police to ensure that two senior police officers gave evidence to the Licensing Court in support of the plaintiff's hotel when it was faced with charges of serving intoxicated persons, in circumstances where it would ordinarily be expected that police would not do so. (c) the plaintiff had behaved in such a manner as to afford reasonable grounds for police investigations to determine whether he had misused his position as Minister for Police to ensure that police gave his hotel preferential treatment in applications before the Licensing Court. (d) The plaintiff, notwithstanding that he was Minister for Police, went along with the existence and tolerance of violence at his hotel". 2 This pleading was filed consequent upon the Court of Appeal dismissing an appeal ([2000] NSWCA 48, 13 March 2000) from a judgment of Dunford J ([1999] NSWSC 620) with respect to an earlier set of imputations. 3 The present application relates to the imputations pleaded in respect of an article published on 29 November 1998 bearing the headline "Two Police Probes into Whelan Hotel". The imputations with which his Honour Justice Dunford dealt were as follows: "(a) The Plaintiff abused his position as Minister for Police resulting in police giving his hotel preferential treatment in applications before the Licensing Court.