Radio 2UE Sydney Pty Ltd v Chesterton

Citation: (2009) 238 CLR 460

The respondent, Ray Chesterton, was a journalist for The Daily Telegraph newspaper. In early June 2005, broadcaster, John Laws, made remarks about Chesterton on the appellant’s radio station, 2UE Sydney. Chesterton brought proceedings against Radio 2UE Sydney Pty Ltd in the Supreme Court of New South Wales. At first instance before Simpson J, the jury found that Chesterton’s pleaded imputations were conveyed and were defamatory. Radio 2UE Sydney appealed to the New South Wales Court of Appeal, claiming that the trial judge had misdirected the jury in relation to three imputations which reflected upon Chesterton’s professional reputation as a journalist. By majority (Spigelman CJ and Hodgson JA, McColl JA dissenting), the New South Wales Court of Appeal dismissed the appeal. Radio 2UE Sydney appealed to the High Court of Australia.

Held, dismissing the appeal:

Per French CJ, Gummow, Kiefel and Bell JJ:

(i) The New South Wales Court of Appeal in Gacic v John Fairfax Publications Pty Ltd erred by failing to recognise that the relevant injury is that done to the plaintiff’s reputation, not to the plaintiff’s business. An injury to the plaintiff’s business is protected by the tort of injurious falsehood, not the tort of defamation: at [32], [60].

(ii) The majority of the New South Wales Court of Appeal in the instant case did not fail to recognise that the focus of the tort of defamation is the effect of the publication of defamatory matter on the plaintiff’s reputation: at [35].

(iii) The general test for defamation, being whether the matter in question lowers the plaintiff’s standing or estimation in the community or causes others to think less of him or her, should apply to imputations concerning all aspects of a plaintiff’s reputation, including his or her business or professional reputation: at [36], [46], [48], [60].

(iv) The notion of “lowering in the estimation” does not connote the exercise of a moral judgment. Rather, it refers to a lowering of the standing of the plaintiff: at [37].

(v) The expression, “right-thinking”, should not be understood to refer to the application of particular moral or ethical standards. Rather, it should be understood as a rejection of a wrong standard, one not held by the community, thereby embodying decency: at [38], [60].
254 ALR 606 at 607

(vi) It is important to distinguish between the general test for defamation and any community standards which may be relevant in a particular case. Such standards may be necessary to the assessment of the effect of an imputation on the plaintiff’s reputation but the standards themselves do not form part of the general test for defamation. The standards to be applied will vary according to the nature of the reputation at issue. Such standards are not limited to moral or ethical standards. Equally, it should not be assumed that moral or ethical standards have no relevance to imputations reflecting upon a plaintiff’s business or professional reputation: at [41], [43], [46], [48], [60].

(vii) In the instant case, the issue is the meaning of the imputation, as determined by the ordinary, reasonable reader with knowledge of the business or professional context, not applying general community standards: at [50].

(viii) There was no miscarriage of justice caused by the trial judge’s directions to the jury: at [59], [61].

Per Heydon J:

(ix) Even if the jury had been directed as Radio 2UE Sydney submitted it should have been, a different result would not have been reached. Whichever test for the defamatory quality of imputations was applied, the imputations in question were unarguably defamatory of Chesterton and any jury verdict to the contrary would be set aside as perverse: at [69].

(x) There was no misdirection of the jury by the trial judge: at [70], [73].