NATIONWIDE NEWS PTY LTD v AITKEN [2004] NSWCA 311

New South Wales Court of Appeal

CITATION : NATIONWIDE NEWS PTY LTD v AITKEN [2004] NSWCA 311 revised - 15/11/2004 HEARING DATE(S) : 1 September 2004 JUDGMENT DATE : 23 September 2004

JUDGMENT OF : Sheller JA at 1; Santow JA at 21; Ipp JA at 22 DECISION : Application refused with costs.

CATCHWORDS : DEFAMATION - whether jury should have been discharged at close of plaintiff's counsel's address - whether jury misled by counsel as to defendant's intentions and truth or falsity of assertions - whether jury answers unanimous - whether the trial Judge should have questioned the foreperson - whether miscarriage of justice justice LEGISLATION CITED : Defamation Act 1974 CASES CITED : Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825 PARTIES : Nationwide News Pty Ltd - Claimant Sydney Francis Aitken - Opponent FILE NUMBER(S) : CA 40186/04 COUNSEL : T D Blackburn SC/A Leopold - Claimant S M Littlemore QC - Opponent SOLICITORS : Blake Dawson Waldron - Claimant Rankin & Nathan - Opponent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20097/03 FILE NUMBER(S) : LOWER COURT Studdert J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40186/04 SC 20097/03

SHELLER JA SANTOW JA IPP JA

NATIONWIDE NEWS PTY LTD v AITKEN On 27 August 2002, the claimant published an article about the opponent in The Daily Telegraph under the headline "Slain by her dad or alive and well with kids". As a result of this article, the opponent brought proceedings against the claimant to recover damages for defamation. In the defamation proceedings, the opponent alleged that the article contained the following imputations; firstly that he had killed his daughter Kathleen Aitken when he was in a drunken rage or secondly, in the alternative, that he had so conducted himself as to warrant reasonable suspicion that he had killed his daughter Kathleen Aitken and thirdly that he had falsely denied murdering his daughter Kathleen Aitken. The jury, at a trial in accordance with the requirements of s7A of the Defamation Act 1974, found that the second and third of these imputations, or a meaning not substantially different from them, were conveyed to the ordinary reasonable reader and that these imputations were defamatory of the plaintiff. The jury found that the first imputation alleged was not conveyed. After the foreperson announced the jury's answer to the last question he indicated that "it presented some difficulties" before being interrupted by another jury member and the trial Judge. Counsel for the defence made an application, which was refused, for the foreperson to be questioned to determine whether the answers given by the jury where unanimous. At the close of counsel for the defendant's address in the trial, counsel for the plaintiff applied to have the jury discharged on grounds including that counsel for the defence had misled the jury by raising for their consideration the issue of the claimant's intention and also had put to the jury the issue of the truth or falsity of the assertions in the article. The trial Judge declined to discharge the jury.