Andrew Kay v Kenneth Cunningham and David Hookes No. SCGRG 95/762 Judgment No. 5242 Number of Pages 18 Defamation

In the Full Court of the Supreme Court of South Australia, Doyle CJ, Debelle and Nyland JJ heard an appeal brought by Andrew Kay and Kenneth Cunningham against a finding of defamation by the trial judge. The plaintiffs, known for their work in sports broadcasting, had brought an action against the defendant, David Hookes, a news broadcaster, for comments made during a news program which they alleged were defamatory. The Full Court dismissed the appeal. The Court found that the words used by the defendant were capable of being understood as referring to the plaintiffs, and were defamatory. The Court found that the trial judge was correct to conclude that the words were not fair comment, and that the defence of fair comment was vitiated by actual malice on the part of the defendant. Finally, the Court found that the award of damages was not manifestly excessive.