New South Wales Court of Appeal CITATION: McBride v John Fairfax Publications Pty Limited & Anor [2008] NSWCA 63 HEARING DATE(S): 3 April 2008 JUDGMENT OF: McColl JA at 5; Young CJ in Eq at 6; Handley AJA at 2 EX TEMPORE JUDGMENT DATE: 3 April 2008 DECISION: Leave to appeal refused. Summons dismissed with costs. CATCHWORDS: DEFAMATION - Contextual imputations - Jury entitled to read between lines - Contextual imputations may be conveyed between the lines in addition to express imputations CATEGORY: Principal judgment CASES CITED: Lewis v Daily Telegraph [1964] AC 234 William Griffith McBride (Claimant) PARTIES: John Fairfax Publications Pty Limited (First Opponent) Norman Swan (Second Opponent) FILE NUMBER(S): CA 40478/07 COUNSEL: T S Hale SC/R K M Rasmussen (Claimant) K P Smark SC (First and Second Opponent) SOLICITORS: Slater & Gordon (Claimant) Mallesons Stephen Jaques (First and Second Opponent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 13029/89 LOWER COURT JUDICIAL OFFICER: Price J LOWER COURT DATE OF DECISION: 27 June 2007 5 July 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40478/07 MCCOLL JA YOUNG CJ IN EQ HANDLEY AJA 3 April 2008 WILLIAM GRIFFITH MCBRIDE v JOHN FAIRFAX PUBLICATIONS PTY LIMITED & ANOR Judgment 1 MCCOLL JA: The court is in a position to deliver its decision and I will invite Justice Handley to deliver the first reasons. 2 HANDLEY AJA: In my opinion leave to appeal should not be granted to review the decision of Price J refusing to strike out the defendant's contextual imputations. The thrust of Mr Hale's submissions was directed at the defendants' contextual imputations (b) (c) and (d). Those imputations are not conveyed in express terms by the matter complained of. This referred to two courses of conduct, the first relating to the plaintiff's MD thesis in the late 1950s, and the second his alleged misappropriation of the research data and conclusions of Dr McCreadie in or about 1972. The two courses of conduct were separated by up to fifteen years. 3 In my opinion it would be open to a jury, reading between the lines in the manner authorised by Lewis v Daily Telegraph [1964] AC 234, 258 to find that the matter complained of conveyed not only the specific allegations I have referred to but also the general allegations pleaded in the contextual imputations. In other words there was a general problem in the plaintiff's approach to scientific research which was not limited to the two courses of conduct specifically mentioned. 4 I would therefore propose that leave to appeal should be refused. 5 MCCOLL JA: I agree. 6 YOUNG CJ IN EQ: I also agree. 7 MCCOLL JA: As I have already indicated that the court would not grant leave to appeal from Price J's amendment decision the order of the court is that the summons is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.