Gardener v Nationwide News Pty Limited [2007] NSWCA 10

New South Wales Court of Appeal

CITATION: Gardener v Nationwide News Pty Limited [2007] NSWCA 10

HEARING DATE(S): 13/12/06

JUDGMENT DATE: 19 February 2007

JUDGMENT OF: Mason P at 1; Tobias JA at 2; Bryson JA at 3

DECISION: (1) Appeal allowed with costs.; (2) Set aside the determinations of the Jury on Questions 2, 5(c) and 7 and order a new trial of Questions 2, 3, 4, 5(c), 6(c), 7 and 8.

CATCHWORDS: DEFAMATION – Jury determinations under s.7A(3) – A series of three articles in Daily Telegraph related to Acclaim Education, a college with conduct of which the appellant was associated which coached HSC students – many references to fraud, cheating, investigations and scandal – First article did not name appellant, later articles identified her by name, photographs and adverse personal history as the person referred to – Jury answered questions on whether readers of first article identified her (yes) whether it was reasonable to identify her (no), answered questions on whether imputations relating to history were conveyed in second and third articles (no). Jury found that another imputation which did not relate to the College was conveyed and was defamatory (convicted of bank robberies). The C.A. set aside three determinations that imputations were not conveyed and ordered new trial on those imputations and whether they were defamatory, and refused to set aside two other challenged determinations: decision turned on detailed address to contents of articles. Consideration of – appellate power to set aside jury verdict – proof that identification by reader is reasonable where the person referred to is not named and identification depends on reader's special knowledge or on reader's interpretation after seeing identification in later publication – Held if it is incontrovertible from later publication that identification was correct, that fact predominates in assessing whether it was reasonable to make the identification.