Jim Byrnes v John Fairfax Publications Pty Ltd [2004] NSWSC 635

New South Wales Supreme Court

CITATION : Jim Byrnes v John Fairfax Publications Pty Ltd [2004] NSWSC 635 HEARING DATE(S) : 19/07/04 JUDGMENT DATE : 15 October 2004

JUDGMENT OF : Shaw J at 1 DECISION : (1) I give leave to amend the statement of claim. (2) In accordance with ordinary practice, those paragraphs of the pleadings which have been struck out and which are not, in accordance with my ruling, to go to the jury should be the subject of the verdict for the defendant. Those aspects of the pleadings in relation to which I have given leave to replead should be reproduced in a compendious amended statement of claim. All of the other matters, I would regard as being outstanding issues to go to the jury in due course in these proceedings. (3) There seems to be some good sense in simply reserving the costs, but I will entertain any argument on that point, keeping an open mind, after the parties have considered this judgment. (4) The plaintiff must file within fourteen days an amended statement of claim to reflect this judgment. The defendant must bring in (hopefully by consent, short minutes of order) so that the orders arising from this judgment can be finalised. (5) Liberty to apply is granted in the event that I have not dealt with some particular matter which the parties need a decision upon or whether there is some other matter which legitimately arises that needs to be attended to before these interlocutory proceedings are concluded.

CATCHWORDS : Application by defendant, John Fairfax Publications Pty Ltd, to strike out imputations that the plaintiff, Jim Byrnes, says arise from 3 articles published in the Sydney Morning Herald in August of 2004 - That the Judge's role is a very limited one at this early stage of the proceedings, namely to determine the question as to whether the publication is reasonably capable of carrying the imputation pleaded by the plaintiff and, as an ancillary matter, whether the pleadings are overlapping in the sense as to whether they contain matters which could be characterised as a "rhetorical flourish" and are therefore inappropriate to go forward to the jury LEGISLATION CITED : Defamation Act 1974 (NSW) s7A Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Barry v Australian Broadcasting Corporation (2002) 112 IR 33 Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 Carpenters' Investment Trading Co Ltd v Commonwealth (1952) 69 WN (NSW) 175 Keogh v The Incorporated Dental Hospital of Ireland [1910] 2 IR 577 CASES CITED : Lewis v Daily Telegraph Ltd [1964] AC 234 Reader's Digest Services Pty Ltd and Anor v Lamb (1982) 150 CLR 500 Rivkin v John Fairfax Publications Pty Ltd (unreported, 18 September 1998) Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 The King (Kate Donohue and ors) v The Justices of County Cork [1910] 2 IR 271 Whatman & Anor v John Fairfax & Sons Ltd (unreported, 20 February 1980) PARTIES : Jim Byrnes John Fairfax Publications Pty Ltd FILE NUMBER(S) : SC 20241/2003 C A Evatt (Plaintiff) COUNSEL : T Blackburn SC (Defendant) J P Donohoe (Defendant) SOLICITORS : Monte Gildea Lawyer (Plaintiff) Leanne Norman, Freehills Solicitors (Defendant)