CITATION: Australian Broadcasting Corporation v McBride [2001] NSWCA 322 FILE NUMBER(S): CA 40684/00 HEARING DATE(S): 19/09/01 JUDGMENT DATE:
1 November 2001PARTIES :
Australian Broadcasting Corporation v William McBrideJUDGMENT OF: Beazley JA at 1; Ipp AJA at 2; Fitzgerald AJA at 77
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :SC 15135/88 LOWER COURT
JUDICIAL OFFICER :Levine J
COUNSEL: T Tobin QC / R Glasson (Appellant)
T E F Hughes QC / R A Campbell (Respondent)SOLICITORS: J Walker (Appellant)
Maurice May & Co (Respondent)CATCHWORDS: DEFAMATION - Plea of mitigation of damages - whether trial judge erred in ordering that particulars in support of plea be struck out - whether defendant could rely on particulars despite no defence of justification - whether particulars related to relevant sector of plaintiff's reputation - evidence Court could have regard to in determining that issue - whether relevant sector rule affected by Evidence Act ss 55, 56 - whether defendant could rely on particulars relating to matters arising after date of publication. D LEGISLATION CITED: Defamation Act 1974
Evidence Act 1995CASES CITED: Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Kelly v John Fairfax & Sons Ltd [1982] 2 NSWLR 478
O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Scott v Sampson [1882] 8 QBD 491
Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16
Goody v Oldhams Press Ltd [1967] 1 QB 333
Associated Newspapers Ltd & Ors v Dingle [1964] AC 371
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116
Television New Zealand Ltd v Quinn [1996] 3 NZLR 24
Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312
Plato Films Limited v Speidel (1961) 2 AC 1090
Associated Newspapers Limited v Dingle (1964) AC 371
Speidel v Plato Films Ltd [1961] AC 1090
Jorgensen v NZ Newspapers Limited (1974) 2 NZLR 45
Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749
Television New Zealand v Prebble [1993] 3 NZLR 513
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119
McBride v Walton (Unreported, NSWCA, 15 July 1994)
Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472
Dougherty v Nationwide News Pty Ltd (1968) 88 WN (pt 1) NSW 146
A B Parry & Sons Pty Ltd v The K G Murray Publishing Co (Unreported,NSWSC, 10 April 1980)
John Fairfax & Sons v Kelly (1987) 8 NSWLR 131
Broome v Cassell [1972] AC 1027DECISION: (1) Appellant's application to amend the Notice of Appeal refused (2) Appeal dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40684/00
SC 15135/98
BEAZLEY JA
IPP AJA
FITZGERALD AJA
- Thursday 1 November 2001
AUSTRALIAN BROADCASTING CORPORATING v WILLIAM McBRIDE
DEFAMATION – Plea of mitigation of damages – whether trial judge erred in ordering…
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Details
- Case
- [2001] NSWCA 322
- Decision Date
CaseChat Overview and Summary
The Australian Broadcasting Corporation (ABC) appealed to the Court of Appeal of New South Wales against a decision of the trial judge who had struck out particulars filed by the ABC in support of its plea of mitigation of damages in defamation proceedings brought by Mr. McBride.
The central legal issues before the Court of Appeal were whether the ABC could rely on the particulars to mitigate damages despite not having pleaded a defence of justification, whether those particulars related to a relevant sector of Mr. McBride's reputation, and whether the *Evidence Act 1995* (NSW) affected the application of the "relevant sector rule". The Court also considered whether the ABC could rely on particulars relating to matters that arose after the date of publication.
The Court of Appeal held that the "relevant sector rule" was not abrogated by the *Evidence Act 1995* (NSW) and that the particulars sought to rely on matters that did not relate to the specific sector of Mr. McBride's reputation that had been impugned by the defamatory material. Furthermore, the Court found that the particulars relating to events after the date of publication were not relevant to the mitigation of damages. Consequently, the Court dismissed the ABC's appeal. The Court also refused the ABC's application to amend its Notice of Appeal.
The central legal issues before the Court of Appeal were whether the ABC could rely on the particulars to mitigate damages despite not having pleaded a defence of justification, whether those particulars related to a relevant sector of Mr. McBride's reputation, and whether the *Evidence Act 1995* (NSW) affected the application of the "relevant sector rule". The Court also considered whether the ABC could rely on particulars relating to matters that arose after the date of publication.
The Court of Appeal held that the "relevant sector rule" was not abrogated by the *Evidence Act 1995* (NSW) and that the particulars sought to rely on matters that did not relate to the specific sector of Mr. McBride's reputation that had been impugned by the defamatory material. Furthermore, the Court found that the particulars relating to events after the date of publication were not relevant to the mitigation of damages. Consequently, the Court dismissed the ABC's appeal. The Court also refused the ABC's application to amend its Notice of Appeal.
Orders
Orders of the court
(1) Appellant's application to amend the Notice of Appeal refused (2) Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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