NSW Caselaw
New South Wales Court of Appeal
CITATION: Fraser v Holmes [2009] NSWCA 36
HEARING DATE(S): 5 February 2009
JUDGMENT DATE: 5 March 2009
JUDGMENT OF: Tobias JA at 1; McColl JA at 95; Basten JA at 96
(a) Appeal allowed DECISION: (b) Set aside the orders made by Simpson J on 12 June 2008 (c) The proceedings be dismissed (d) The respondent to pay the appellant's costs of the proceedings and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 195, if otherwise qualified
CATCHWORDS: DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – on matters of public interest – what constitutes privileged occasion, communication or conduct – whether the occasion of a communication between a candidate and a non-candidate who had expressed contrary political views in the context of an election campaign attracts qualified privilege – whether an ulterior motive of a non-candidate for campaigning against a candidate is relevant to the occasion of qualified privilege – rebuttal of privilege by malice – whether recklessness without evidence of wilful blindness is sufficient to establish that a publication is actuated by malice - fair comment – foundation of fact
Defamation Act 1974 LEGISLATION CITED: Defamation Act 2005 Suitors' Fund Act 1951
CATEGORY: Principal judgment
Adam v Ward [1917] AC 309 Aktas v Westpac Banking Corporation Ltd (2009) NSWCA 9 Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 Braddock v Bevins [1948] 1 KB 580 Channel 7 Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 CASES CITED: Clarke v Norton [1910] VLR 494 Gross v Weston [2007] NSWCA 1 Horrocks v Lowe [1975] AC 135 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 Lindholdt v Hyer [2008] NSWCA 264 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 Roberts v Bass [2002] HCA 57; 212 CLR 1 Toogood v Spyring (1834) 1 Cr M and R 181 at 193; 149 ER 1044
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