Jim Byrnes v Paul Barry

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Higgins CJ
• Judgment Date: 09 July 2003
• Docket Number: No. SC 530 of 2002
• Date: 09 July 2003

[2003] ACTSC 54

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Higgins CJ

No. SC 530 of 2002

Between:

Jim Byrnes

Applicant

and

Paul Barry

First Respondent

and

John Fairfax Publications Pty Limited Acn 003 357 720

Second Respondent

Counsel for the applicant: Mr C Evatt

Counsel for the respondents: Mr Nicholas QC, Mr T Tobin QC

Richard George Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 (18 December 2002)

Ex parte O'Connor; re Wright (1930) 47 NSW WN 193

R v Macnamara and Rosa (1893) 14 NSWR 515

Goldsmith v Pressdram [1977] 1 QB 83

R v Wells Street Stipendiary Magistrate ex parte Deakin and others [1980] AC 477

Monteith v Clarke, Neill and Ors (1993) NI 376, 385

Desmond v Thorne and Others [1983] 1 WLR 163, 169

Burton v Parker and Ors [1998] Tas SC 104 (28 August 1998)

Shapowloff v Fitzgerald [1966] 2 NSWR 244

Ex parte Narme; Re Leong Wen Joe (1928) 45 WN (NSW) 78

R v Grassby (1992) 62 ACrim R351

R v Murphy (1897) 8 QLJ 63

Defamation (Criminal Proceedings) Act 2001 (ACT) s 29, s 30.

Defamation Act 1974 (NSW), s 49, s 50

Director of Public Prosecutions Act 1990 (ACT), s 8.

DEFAMATION — defamatory libel — requirement to obtain consent to commence criminal action — factors relevant to the issue.

DEFAMATION — factors — alleged defamation part of a ‘vendetta’ — alleged ‘breach of the peace’ — no doubt published matter was defamatory in nature — role of ‘public interest’ concern — impact of publication within Australian Capital Territory.

ORDER

THE COURT ORDERS THAT:

• 1. The application for leave be dismissed.

1 This is an application pursuant to a Notice of Motion dated 30 August 2002 seeking, on behalf of the applicant, leave to commence a prosecution against the respondents for ‘defamatory libel under s 30(1) of the Defamation Act 2001’. That provision is currently located in the Defamation (Criminal Proceedings) Act 2001 (ACT).

2 The factual basis asserted by the applicant to warrant the grant of such leave is set out in various affidavits, two of the applicant, dated 28 August 2002 and 3 December 2002 respectively, and one of Mr Robert Orr QC dated 4 September 2002.

3 The complaint the applicant makes concerns a publication dated 10 August 2002 entitled ‘Good Weekend’. It is a supplement to the Sydney Morning Herald (SMH) of the same date.

4 Mr Orr deposes that he received a delivery to his home in the Australian Capital Territory, pursuant to an arrangement with his local newsagent, of the SMH of that date and, included therewith, the ‘Good Weekend’, on 10 August 2002. The latter is a features magazine.

5 I therefore accept that evidence exists, which, if accepted to the criminal standard of proof, would establish publication in the Territory of the edition of the ‘Good Weekend’ of 10 August 2002 of which the applicant complains. It is not disputed that the respondents can be shown to have, respectively, authored and published the matter complained of.

6 In referring to the facts deposed to by the applicant I am expressing no view as to whether those facts will be proved to the requisite standard in any criminal trial, should one ensue.

THE FACTS

7 The applicant conducts, through his company ‘Cromwell's Auctioneers & Appraisers Pty Limited’ (Cromwells), the business of auctioneers and appraisers (as the company name implies).

8 The applicant is also the sole director of Regency Apartments Pty Limited (Regency), a property development company.

9 In his affidavits, the applicant details his personal history and achievements as well as the fact that he did serve time in prison. The latter fact is relevant to some of the material complained of. He also details what are put forward as apparent reactions of other persons to the circulation of the matter complained of. Those matters would be relevant to damages or penalty in defamation proceedings, but I will not reiterate them here. They are all events which occurred in New South Wales.

10 It is also relevant to note that the applicant has complained of and sued upon previous publications of the second respondent. The applicant perceives the article of 10 August 2002 as being part of a ‘vendetta’ against him. That consideration is put forward to support a contention that damages will not be an adequate remedy. As against that, whilst one of those articles has been found to be defamatory (in September 2001), there is no evidence of any award of damages having been made in respect of any of them and, hence, of the second respondent's reaction to such an adverse consequence. In New South Wales, a jury verdict finding that matter published is defamatory does not, of itself, establish liability. The trial judge will determine if any defence is made out and assess damages if liability is found. It is, therefore, not yet apparent what the deterrent effect, if any, of an unsuccessful defence and an award of damages and costs in respect of those civil proceedings might be.

11 Further, the applicant claimed, he could not take criminal proceedings in New South Wales because (he was advised) ‘Part 49(1) (sic) of the NSW Defamation Act 1974’ abolished the common law misdemeanour of criminal libel.

12 That is true as far as it goes. Section 49(1) has that effect. However, there is a replacement provision in s 50. I will return to that provision later.

13 The other publications by the first respondent concerning the applicant are detailed as follows. Specifically, (apart from the matter complained of), the SMH on 24/25 August 2002 and on 7 October 2002. In respect of the latter article, the applicant states that he sought a restraining order from Dunford J in the New South Wales Supreme Court but that order, it seems, was refused.

14 The applicant also complains of other publications of the second respondent which he asserts have been defamatory of him, namely, in the Sun Herald (SH) 11 August 1996, SMH 27 August 1999, 28 September 1999, SH 22 July 2001, SMH 24 November 2001, 1 December 2001, 22 December 2001, 20-21 April 2002 and 8-9 June 2002. He has sued on other articles than those mentioned above, namely, in the SMH of 31 July 2000 and of 3 August 2000.

15 There does not appear to be any reason to doubt, having read them, that these articles each make one or more defamatory imputations against the applicant. He is portrayed as an ex-convict, ex-bankrupt and a businessman whose ethics and business practices would make his namesake on ‘the Simpsons’ look a paragon of virtue.

16 Nor is there any doubt that the article complained of in the ‘Good Weekend’ would have been hard pressed to have found any additional defamatory imputations than were detailed over the six pages, including the cover, referring to the applicant.

17 His solicitor, in a letter of complaint to New South Wales Attorney General, Bob Debus of 19 August 2002 identified 25 imputations, even without citing the references in the matter complained of, to the applicant's criminal record.

18 In his affidavit of 3 December 2002 the number of defamatory imputations the applicant identified had swelled to 80. Those were only those he contended to be false. Whilst it is defamatory of him to say so, it is not apparently contended to be untrue that the applicant has been a bankrupt and served time in prison for heroin dealing.

19 It should be noted that even true statements about a person, if defamatory, may be successfully sued on in most States and Territories of Australia, unless it is in the public interest or for the public benefit to air those allegations.

20 It is also important to note that there has been no adjudication on the truth or otherwise of the respondents” other allegations against the applicant. Nor, even if they are false, whether one or more defence to the making of a defamatory statement, even if it be false, can be made out — see eg Richard George Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 (18 December 2002).

21 Mr Tobin QC, counsel for the respondents, tendered the letter of complaint from the applicant's solicitors to the second respondent in respect of the article of 24/25 August 2002. That article was apparently authored by a Ms Kate McClymont, not the first respondent.

22 There was tendered also a transcript of the proceedings before Dunford J on 4 October 2002. Before Dunford J, the first respondent conceded that he wrote a draft of the article of 7 October 2002. He said nothing and was asked nothing about Ms McClymont's article of 24 August 2002. There does not seem to be any evidence that he had anything to do with that article, contrary to the applicant's assertion in his affidavit.

23 The Statements of Claim in respect of the publications of 31 July 2000 and 3 August 2000 were also tendered.

THE LEGISLATION

24 As has been noted, the application relies upon s 30 of the Defamation (Criminal Proceedings) Act 2001 (ACT) (the D(CP) Act).

25 That Act has been in force only since 1 July 2002. The original provisions were separated from the Defamation Act 2001 (ACT) and the Act re-named on 1 November 2002. There was no alteration to the text of those provisions. Section 30 provides:

• (1) A prosecution may only be begun with the order of a judge.

• (2) An application for an order may only be made on notice to the person accused.

• (3) The person accused must be given an opportunity of being heard against the application.

26 The D(CP) Act, s 29, creates the offence to which that latter provision relates. It states:

A person must not maliciously publish a defamatory libel (whether or not the person knows it is false).

Maximum penalty: 300 penalty units, imprisonment for 3 years or both.

27 These provisions replaced similar provisions in Part III of the Defamation Act 1901 and the Defamation (Amendment) Act 1909 (originally of New South Wales but applying in the...