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 2006JUDGMENT 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 7CASES 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 ObeidFILE NUMBER(S): CA 40858/05 COUNSEL: A: Mr T Blackburn SC / Ms E Raper
R: Mr B McClintock SC / Mr M RichardsonSOLICITORS: A: S B Collins, ABC Legal Services
R: Gilbert & Tobin, SydneyLOWER 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 07273/02Monday 21 August 2006HODGSON JA
IPP JA
TOBIAS JA
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…
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- Case
- [2006] NSWCA 231
- Decision Date
CaseChat Overview and Summary
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
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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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