Australian Broadcasting Corporation v Obeid - [2006] NSWCA 231

Reported Decision: 66 NSWLR 605

Court of Appeal

CITATION: ABC v Obeid [2006] NSWCA 231
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 August 2006

JUDGMENT DATE:
21 August 2006

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 10; Tobias JA at 11

DECISION: (a) Appeal dismissed; (b) Summons for leave to appeal dismissed; (c) The appellant to pay the respondent’s costs of the appeal and the summons for leave to appeal

CATCHWORDS: DEFAMATION – publication – radio broadcast – “strike in” application – principles – definition of whole broadcast or publication – ordinary reasonable listener – extent of necessary inquiry into conduct – DEFAMATION – privilege – statutory qualified privilege – common law qualified privilege

LEGISLATION CITED: Defamation Act 1974
District Court Rules, Pt 9, r 7

CASES CITED: The Age Corporation Ltd v Beran [2005] NSWCA 289
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bennette v Cohen [2005] NSWCA 341, 64 NSWLR 81
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Burrows v Knightley (1987) 10 NSWLR 651
Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (note)
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Sandilands v Channel 7 Pty Ltd [2005] NSWSC 1250
Theophanaous v Herald & Weekly Times Ltd (1984) 182 CLR 104
Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532
Waites v Macquarie Radio Network Ltd [2006] NSWSC 507
Westaway v Jones (Unreported, 20 August 1993, Levine J)

PARTIES: Australian Broadcasting Corporation
Edward Obeid

FILE NUMBER(S): CA 40858/05

COUNSEL: A: Mr T Blackburn SC / Ms E Raper
R: Mr B McClintock SC / Mr M Richardson

SOLICITORS: A: S B Collins, ABC Legal Services
R: Gilbert & Tobin, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 07273/02

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

LOWER COURT DATE OF DECISION: 12 November 2002

CA 40858/05
DC 07273/02

HODGSON JA
IPP JA
TOBIAS JA
Monday 21 August 2006

AUSTRALIAN BROADCASTING CORPORATION v EDWARD OBEID

Facts:

The respondent complained that he had been defamed by certain matter broadcast by the appellant during a morning radio newscast. The appellant sought to have some additional material that had been broadcast on the same radio station throughout the morning “struck in” to the respondent’s statement of claim. The primary judge allowed the statement of claim to be amended in respect of only some of the additional material, excluding a series of further statements about the matter that were made later in the morning.

The jury held that the matter that was included in the statement of claim was defamatory. The appellant appeals against…

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: [2006] NSWCA 231
Decision Date: 21 August 2006

CaseChat Overview and Summary

The Australian Broadcasting Corporation (ABC) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning a defamation claim brought by Mr. Obeid. The dispute centred on a radio broadcast by the ABC which Mr. Obeid alleged was defamatory. The ABC sought to rely on defences of statutory and common law qualified privilege.

The Court of Appeal was required to determine whether the broadcast, viewed as a whole, was defamatory of Mr. Obeid. It also had to consider the principles governing the application of qualified privilege, specifically the extent to which an inquiry into the conduct of the subject of a broadcast is necessary for the purposes of the privilege to apply. The court also considered the meaning of "publication" in the context of a radio broadcast and the perspective of an "ordinary reasonable listener".

The Court of Appeal dismissed the ABC's appeal, finding that the broadcast was capable of being defamatory of Mr. Obeid. The judges applied established principles of defamation law, including the test for determining whether matter is defamatory, which involves considering how an ordinary reasonable reader or listener would understand the publication. The court also analysed the requirements for qualified privilege, concluding that the ABC had not established the defence in this instance. The summons for leave to appeal was also dismissed. Consequently, the ABC was ordered to pay Mr. Obeid's costs of the appeal and the summons for leave to appeal.

Orders

Orders of the court

(a) Appeal dismissed; (b) Summons for leave to appeal dismissed; (c) The appellant to pay the respondent's costs of the appeal and the summons for leave to appeal

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:	ABC v Obeid [2006] NSWCA 231 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 August 2006
JUDGMENT DATE:	21 August 2006
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 10; Tobias JA at 11
DECISION:	(a) Appeal dismissed; (b) Summons for leave to appeal dismissed; (c) The appellant to pay the respondent’s costs of the appeal and the summons for leave to appeal
CATCHWORDS:	DEFAMATION – publication – radio broadcast – “strike in” application – principles – definition of whole broadcast or publication – ordinary reasonable listener – extent of necessary inquiry into conduct – DEFAMATION – privilege – statutory qualified privilege – common law qualified privilege
LEGISLATION CITED:	Defamation Act 1974 District Court Rules, Pt 9, r 7
CASES CITED:	The Age Corporation Ltd v Beran [2005] NSWCA 289 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bennette v Cohen [2005] NSWCA 341, 64 NSWLR 81 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Burrows v Knightley (1987) 10 NSWLR 651 Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (note) Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Sandilands v Channel 7 Pty Ltd [2005] NSWSC 1250 Theophanaous v Herald & Weekly Times Ltd (1984) 182 CLR 104 Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532 Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 Westaway v Jones (Unreported, 20 August 1993, Levine J)
PARTIES:	Australian Broadcasting Corporation Edward Obeid
FILE NUMBER(S):	CA 40858/05
COUNSEL:	A: Mr T Blackburn SC / Ms E Raper R: Mr B McClintock SC / Mr M Richardson
SOLICITORS:	A: S B Collins, ABC Legal Services R: Gilbert & Tobin, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 07273/02
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ
LOWER COURT DATE OF DECISION:	12 November 2002