Australian Broadcasting Corporation v Hodgkinson - [2005] NSWCA 190

CITATION:
Australian Broadcasting Corporation & Anor. v. Hodgkinson [2005] NSWCA 190

HEARING DATE(S):
11 May 2005

JUDGMENT DATE:

15 June 2005

JUDGMENT OF:
Hodgson JA at 1; McColl JA at 42; McClellan AJA at 43

DECISION:
Appeal dismissed with costs

CATCHWORDS:
DEFAMATION - Pleading - Contextual imputation - Whether rhetorical - Whether sufficiently specific and precise - Whether less specificity and precision required than for plaintiff's imputations - Applicability of considerations of practical justice - Relevance of particulars of facts and circumstances relied on to establish truth

LEGISLATION CITED:
Defamation Act 1974 ss.7A, 16

CASES CITED:
Ainsworth v. Burden [2000] NSWSC 105
Amalgamated Television Services Pty. Ltd. v. Marsden (1998) 43 NSWLR 158
Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135
Hansen v. Border Morning Mail, unreported, 24/10/86
John Fairfax Publications Pty. Ltd v. Blake [2001] NSWCA 434, 53 NSWLR 541
McBride v. Australian Broadcasting Commission [2000] NSWSC 747
Monte v. Mirror Newspapers Ltd. [1979] 2 NSWLR 663
Morris v. Newcastle Newspapers Pty. Ltd. (1985) 1 NSWLR 260
Whelan v. John Fairfax Pty. Ltd. [2002] NSWSC 1028, 56 NSWLR 89

PARTIES:
Australian Broadcasting Corporation - 1st appellant
Norman Swan - 2nd appellant
Suzanne Hodgkinson - respondent

FILE NUMBER(S):
CA 40579/04

COUNSEL:
Ms. C.E. Adamson SC with Mr. A.T.S. Dawson for appellants
Mr. R.G. McHugh for respondent

SOLICITORS:
Stephen Barry Collins, ABC Legal Services, Ultimo for appellants
Corrs Chambers Westgarth, Sydney for respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 8645/02

LOWER COURT JUDICIAL OFFICER:
Gibson DCJ

CA 40579/04
DC 8645/02

HODGSON JA
McCOLL JA
McCLELLAN AJA
Wednesday 15 June 2005

AUSTRALIAN BROADCASTING CORPORATION & ANOR. V HODGKINSON

Headnote

FACTS

1 In April 2002, the appellants transmitted three broadcasts of “The Science Show” relating to an investigation into scientific and financial misconduct at the University of New South Wales involving the respondent’s husband. The broadcasts included interviews and investigative journalism regarding allocation of grant funds, fraudulent academic misconduct and undeserved credit for scientific publications.

2 The respondent claimed damages for defamation from the appellants. Pursuant to s.7A of the Defamation Act 1974, a jury found that three of the ten imputations pleaded by the respondent were conveyed by the broadcasts and were defamatory. The appellants’ defence under s.16 of the Act relied on numerous contextual imputations, which the respondent sought to have struck out.

3 The primary judge ordered that the first contextual imputation, “That the plaintiff is not a fit and proper person to supervise other scientists”, be struck out with leave to re-plead on the ground that it was rhetorical. The appellants appealed, and the respondent filed a Notice of Contention contending that the material was not capable of ‘making’ the contextual imputation struck out by the primary judge.

HELD

(1) It is doubtful that the broadcasts conveyed the contextual imputation in question, as the material transmitted did not deal directly with the fitness and propriety of the respondent to supervise students. However, the test for capacity to convey an imputation…

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: [2005] NSWCA 190
Decision Date: 15 June 2005

CaseChat Overview and Summary

The Australian Broadcasting Corporation (ABC) appealed a decision of the Supreme Court of New South Wales concerning imputations of fact pleaded by the respondent, Mr. Hodgkinson, in defamation proceedings. Mr. Hodgkinson alleged that certain broadcasts by the ABC conveyed defamatory imputations about him. The ABC sought to strike out these imputations, arguing they were not sufficiently specific or precise.

The central legal issue before the Court of Appeal was whether the imputations of fact pleaded by Mr. Hodgkinson were sufficiently specific and precise to be sustainable in defamation proceedings, particularly in light of the ABC's defence of contextual imputation. The court had to consider the degree of specificity and precision required for such imputations and whether the considerations of practical justice, including the particulars of facts and circumstances relied upon to establish truth, were relevant to this determination.

The Court of Appeal affirmed that while imputations pleaded by a plaintiff in defamation proceedings generally require a degree of specificity and precision, the context in which those imputations are made, and the nature of the defence being raised, can influence the level of detail required. The court found that the imputations pleaded by Mr. Hodgkinson, when considered in their full context and in light of the particulars provided, met the necessary threshold for specificity and precision, and that striking them out would not be in accordance with practical justice.

The appeal was dismissed, and the Australian Broadcasting Corporation was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Australian Broadcasting Corporation & Anor. v. Hodgkinson [2005] NSWCA 190
HEARING DATE(S):	11 May 2005
JUDGMENT DATE:	15 June 2005
JUDGMENT OF:	Hodgson JA at 1; McColl JA at 42; McClellan AJA at 43
DECISION:	Appeal dismissed with costs

CATCHWORDS:	DEFAMATION - Pleading - Contextual imputation - Whether rhetorical - Whether sufficiently specific and precise - Whether less specificity and precision required than for plaintiff's imputations - Applicability of considerations of practical justice - Relevance of particulars of facts and circumstances relied on to establish truth
LEGISLATION CITED:	Defamation Act 1974 ss.7A, 16
CASES CITED:	Ainsworth v. Burden [2000] NSWSC 105 Amalgamated Television Services Pty. Ltd. v. Marsden (1998) 43 NSWLR 158 Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135 Hansen v. Border Morning Mail, unreported, 24/10/86 John Fairfax Publications Pty. Ltd v. Blake [2001] NSWCA 434, 53 NSWLR 541 McBride v. Australian Broadcasting Commission [2000] NSWSC 747 Monte v. Mirror Newspapers Ltd. [1979] 2 NSWLR 663 Morris v. Newcastle Newspapers Pty. Ltd. (1985) 1 NSWLR 260 Whelan v. John Fairfax Pty. Ltd. [2002] NSWSC 1028, 56 NSWLR 89
PARTIES:	Australian Broadcasting Corporation - 1st appellant Norman Swan - 2nd appellant Suzanne Hodgkinson - respondent
FILE NUMBER(S):	CA 40579/04
COUNSEL:	Ms. C.E. Adamson SC with Mr. A.T.S. Dawson for appellants Mr. R.G. McHugh for respondent
SOLICITORS:	Stephen Barry Collins, ABC Legal Services, Ultimo for appellants Corrs Chambers Westgarth, Sydney for respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8645/02
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ