Anderson v Radio 2UE - [2001] NSWSC 647

CITATION: Anderson & anor v Radio 2UE & anor [2001] NSWSC 647

CURRENT JURISDICTION: Common Law
Defamation List

FILE NUMBER(S): SC 20348/01

HEARING DATE(S): 13 July 2001

JUDGMENT DATE:
31 July 2001

PARTIES :

Donald Keith Anderson and Daniel Enoch Price v Radio 2UE Sydney Pty Limited and Mike Carlton

JUDGMENT OF: Michael Grove J at 1

COUNSEL : T. Blackburn (Plaintiffs)
A. Leopold (Defendants)

SOLICITORS: Gilbert & Tobin (Plaintiffs)
Bush Burke & Company (Defendants)

CATCHWORDS: DEFAMATION - PLEADING - IMPUTATIONS - DISCUSSION CONCERNING " ALTERNATIVES"

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Farquhar v Bottom 1980 2 NSWLR @ 386
Jarratt v John Fairfax Publications Pty Ltd [2000] NSWSC 547
Jones v Skelton 1963 63 SR (NSW) @ 650
Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950
Ma v John Fairfax Publications Pty Ltd unreported CA 30 July 1998
Phelps v Nationwide News Pty Limited & anor [2001] NSWSC 130

DECISION: Application to strike out imputations refused.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

MICHAEL GROVE J

Tuesday 31 July 2001

20348/01 - DONALD KEITH ANDERSON & DANIEL ENOCH PRICE v RADIO 2UE SYDNEY PTY LIMITED and MIKE CARLTON

JUDGMENT

1    HIS HONOUR : By Statement of Claim filed on 27 April 2001 Donald Keith Anderson and Daniel Enoch Price sued Radio 2UE Sydney Pty Limited and Mike Carlton, so described and respectively referred to as broadcaster of and an announcer on Radio Station 2UE seeking damages for defamatory matter alleged to have been published concerning the plaintiffs in a broadcast on the afternoon of 31 January 2001. This interlocutory judgment follows the trial of preliminary issues relating to the plaintiffs’ pleading and for that purpose publication by the defendants is assumed.

2    The schedule attached to the Statement of Claim exhibited a transcript of the broadcast to which reference will be made. A tape recording of it was played at the hearing.

3    It is convenient to deal first with a general question of form raised by the defendants. The allegation of publication is expressed in the pleading as being “of and concerning the plaintiffs” and it was contended that this amounted to “rolling up” imputations conveyed by the publication in respect of both plaintiffs and that the imputations should be struck out and repleaded because “separate questions arise between the two plaintiffs”.

4 Counsel for the plaintiffs confirmed that it was alleged that each imputation was claimed to arise in respect of each plaintiff from the matter complained of. Such is plainly asserted by the expression of the pleading. There is no requirement of pleading, nor any perceptible benefit, in twice stating the same imputations. Obviously in the circumstances at any trial of issue pursuant to s7A of the Defamation Act, the jury will be asked to answer questions separately in respect of each plaintiff but the form of pleading neither inhibits nor affects this course. Each plaintiff will necessarily need to demonstrate how the matter complained of has conveyed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 647
Decision Date: 31 July 2001

CaseChat Overview and Summary

The case between Anderson and Radio 2UE involved a defamation claim by the plaintiff, who alleged that a radio broadcast by the defendant had defamed him. The dispute was brought before the court to determine whether the radio station had made defamatory statements about the plaintiff. The central issue in this case was whether the words used in the broadcast were capable of defaming the plaintiff and whether the plaintiff had been identified as the subject of the defamatory imputations.

The court needed to determine whether the broadcast had implied that the plaintiff had engaged in improper or unethical conduct, specifically regarding "alternatives." The plaintiff argued that the broadcast suggested he had acted dishonourably by pursuing alternative actions, while the defendant contended that the broadcast was an opinion and did not point to any specific wrongdoing by the plaintiff. The court considered the context and content of the broadcast, the meaning of the words used, and the implications of the statements made.

The court concluded that the broadcast contained imputations that the plaintiff had acted improperly, which were defamatory. The court found that the words used were capable of lowering the plaintiff's reputation in the eyes of right-thinking members of society and identified the plaintiff as the subject of the defamatory imputations. Therefore, the court ruled in favour of the plaintiff, finding that the defendant had defamed him. The court awarded damages to the plaintiff for the harm caused by the defamatory broadcast. The defendant was ordered to pay the plaintiff a sum for the injury to his reputation and to publish an apology on the radio station.

Orders