District Court
New South Wales
Medium Neutral Citation: Badri v Harbour Radio Pty Ltd [2018] NSWDC 314 Hearing dates: 23 August 2018 Date of orders: 23 August 2018 Decision date: 09 October 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: In relation to the first matter complained of (Radio 2GB Broadcast – 5 October 2017)
(1) Imputations 3(a) and 3(h) are reasonably capable of being conveyed and reject the challenge to form.
(2) Objections to imputation 3(b) are withdrawn.
(3) In relation to imputation 3(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(4) Imputations 3(d) and 3(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(5) Imputations 3(e) and 3(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(6) Imputations 3(i), 3(r) and 4(g) struck out with leave to replead replacing the word “causing”.
(7) Imputations 3(j), 3(s) and 4(h) struck out with leave to replead an act or condition.
(8) In relation to imputation 3(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being conveyed and the challenge to form is rejected.
(9) Imputations 3(l), 4(a), 3(m) and 4(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 3(m)).
(10) Imputations 3(n) and 3(p) are to be pleaded as fall backs.
(11) Imputations 3(o) and 4(d) withdrawn and struck out.
(12) Objections to imputations 3(q) and 4(f) are withdrawn; imputations 3(q) and 4(f) are reasonably capable of being conveyed.
(13) Imputations 3(t) and 4(i) are struck out with leave to replead.In relation to the second matter complained of (Radio 4BC Broadcast – 5 October 2017)
(14) Imputations 6(a) and 6(h) are reasonably capable of being conveyed and reject the challenge to form.
(15) Objections to imputation 6(b) are withdrawn.
(16) In relation to imputation 6(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(17) Imputations 6(d) and 6(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(18) Imputations 6(e) and 6(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(19) Imputations 6(i), 6(r) and 7(g) struck out with leave to replead replacing the word “causing”.
(20) Imputations 6(j), 6(s) and 7(h) struck out with leave to replead an act or condition.
(21) In relation to imputation 6(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a…
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- Case
- [2018] NSWDC 314
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court addressed included whether specific words and phrases in the broadcasts and posts were defamatory and reasonably capable of being conveyed to the audience. This involved assessing the meaning of certain terms and whether they carried a defamatory connotation. Additionally, the court had to consider whether the plaintiff's proposed amendments to certain imputations were appropriate and whether some imputations should be pleaded as fall backs or were to be struck out entirely.
The court examined each imputation individually, making rulings on their form and capacity. It allowed certain amendments to the imputations to ensure they were reasonably capable of being conveyed. The court struck out some imputations that were deemed not reasonably capable of being conveyed, while others were to be repleaded with specific changes. The court also considered the need for further particulars to identify the audience for each broadcast and post, ensuring that the plaintiff could adequately pursue the defamation claim. The procedural orders included timelines for providing particulars, serving further amended statements of claim, and reserving costs for later determination.
The court's detailed examination of each imputation and its nuanced approach to allowing amendments and striking out certain statements demonstrates the complexity of defamation cases. The final orders reflect the court's meticulous consideration of each challenge and its impact on the overall defamation claim.
Orders
Orders of the court
In relation to the first matter complained of (Radio 2GB Broadcast – 5 October 2017)
(1) Imputations 3(a) and 3(h) are reasonably capable of being conveyed and reject the challenge to form.
(2) Objections to imputation 3(b) are withdrawn.
(3) In relation to imputation 3(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(4) Imputations 3(d) and 3(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(5) Imputations 3(e) and 3(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(6) Imputations 3(i), 3(r) and 4(g) struck out with leave to replead replacing the word “causing”.
(7) Imputations 3(j), 3(s) and 4(h) struck out with leave to replead an act or condition.
(8) In relation to imputation 3(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being conveyed and the challenge to form is rejected.
(9) Imputations 3(l), 4(a), 3(m) and 4(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 3(m)).
(10) Imputations 3(n) and 3(p) are to be pleaded as fall backs.
(11) Imputations 3(o) and 4(d) withdrawn and struck out.
(12) Objections to imputations 3(q) and 4(f) are withdrawn; imputations 3(q) and 4(f) are reasonably capable of being conveyed.
(13) Imputations 3(t) and 4(i) are struck out with leave to replead.
In relation to the second matter complained of (Radio 4BC Broadcast – 5 October 2017)
(14) Imputations 6(a) and 6(h) are reasonably capable of being conveyed and reject the challenge to form.
(15) Objections to imputation 6(b) are withdrawn.
(16) In relation to imputation 6(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(17) Imputations 6(d) and 6(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(18) Imputations 6(e) and 6(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(19) Imputations 6(i), 6(r) and 7(g) struck out with leave to replead replacing the word “causing”.
(20) Imputations 6(j), 6(s) and 7(h) struck out with leave to replead an act or condition.
(21) In relation to imputation 6(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.
(22) Imputations 6(l), 7(a), 6(m) and 7(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 6(m)).
(23) Imputations 6(n) and 6(p) are to be pleaded as fall backs.
(24) Imputations 6(o) and 7(d) withdrawn and struck out.
(25) Objections to imputations 6(q) and 7(f) are withdrawn; imputations 6(q) and 7(f) are reasonably capable of being conveyed.
(26) Imputations 6(t) and 7(i) are struck out with leave to replead.
(27) These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.
In relation to the third matter complained of (2GB.com Website)
(28) Imputations 9(a) and 9(h) are reasonably capable of being conveyed and reject the challenge to form.
(29) Objections to imputation 9(b) are withdrawn.
(30) In relation to imputation 9(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(31) Imputations 9(d) and 9(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(32) Imputations 9(e) and 9(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(33) Imputations 9(i) and 9(r) struck out with leave to replead replacing the word “causing”.
(34) Imputations 9(j) and 9(s) struck out with leave to replead an act or condition.
(35) In relation to imputation 9(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.
(36) Imputations 9(l) and 9(m) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 9(m)).
(37) Imputations 9(n) and 9(p) are to be pleaded as fall backs.
(38) Imputation 9(o) withdrawn and struck out.
(39) Objections to imputation 9(q) are withdrawn; imputation 9(q) is reasonably capable of being conveyed.
(40) Imputation 9(t) is struck out with leave to replead.
(41) These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.
In relation to the fourth matter complained of (4BC.com Website)
(42) Imputations 11(a) and 11(h) are reasonably capable of being conveyed and reject the challenge to form.
(43) Objections to imputation 11(b) are withdrawn.
(44) In relation to imputation 11(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(45) Imputations 11(d) and 11(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(46) Imputations 11(e) and 11(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(47) Imputations 11(i) and 11(r) struck out with leave to replead replacing the word “causing”.
(48) Imputations 11(j) and 11(s) struck out with leave to replead an act or condition.
(49) In relation to imputation 11(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.
(50) Imputations 11(l) and 11(m) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 11(m)).
(51) Imputations 11(n) and 11(p) are to be pleaded as fall backs.
(52) Imputation 11(o) withdrawn and struck out.
(53) Objections to imputation 11(q) are withdrawn; imputation 9(q) is reasonably capable of being conveyed.
(54) Imputation 11(t) is struck out with leave to replead.
(55) These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.
In relation to the fifth matter complained of (Radio 2GB Broadcast – 6 October 2017)
(56) Challenges to form and capacity of imputations 13(a) and 13(f) withdrawn; imputations 13(a) and 13(f) are reasonably capable of being conveyed.
(57) Imputations 13(g) and 13(h) are to be repleaded as fall backs; imputations 13(g) and 13(h) are reasonably capable of being conveyed.
(58) Imputation 13(n) is struck out with leave to replead
(59) Grant leave to the plaintiff to amend imputation 13(l) to replace “will” with “should”; this imputation is reasonably capable of being conveyed.
(60) Imputation 13(m) is struck out with leave to replead.
(61) Imputation 13(o) is struck out as not reasonably capable of being conveyed.
(62) Imputation 13(q) is reasonably capable of being conveyed.
(63) Imputations 13(s) and 13(t) are struck out with leave to replead.
(64) Imputation 13(u) is struck out as not reasonably capable of being conveyed.
(65) Imputations 14(a), 14(c) and 14(d) struck out.
(66) Imputation 14(b) is reasonably capable of being conveyed
In relation to the sixth matter complained of (Radio 4BC Broadcast – 6 October 2017)
(67) Challenges to form and capacity of imputations 16(a) and 16(f) withdrawn; imputations 16(a) and 16(f) are reasonably capable of being conveyed.
(68) Imputations 16(g) and 16(h) are to be repleaded as fall backs; imputations 16(g) and 16(h) are reasonably capable of being conveyed.
(69) Imputation 16(n) is struck out with leave to replead
(70) Grant leave to the plaintiff to amend imputation 16(l) to replace “will” with “should”; this imputation is reasonably capable of being conveyed.
(71) Imputation 16(m) is struck out with leave to replead.
(72) Imputation 16(o) is struck out as not reasonably capable of being conveyed.
(73) Imputation 16(q) is reasonably capable of being conveyed.
(74) Imputations 16(s) and 16(t) are struck out with leave to replead.
(75) Imputation 16(u) is struck out as not reasonably capable of being conveyed.
(76) Imputations 17(a), 17(c) and 17(d) struck out.
(77) Imputation 17(b) is reasonably capable of being conveyed
Procedural orders generally
(78) The plaintiff is to respond to the defendant’s request for particulars dated 2 August 2018 in 14 days.
(79) The defendant is to notify the plaintiff 14 days thereafter any continued objections in relation to the identification of the second plaintiff, and of those who heard each of the simultaneous broadcasts.
(80) The plaintiff’s proposed Further Amended Statement of Claim to be served in 14 days.
(81) Matter stood over to the Defamation List on Thursday 27 September 2018 for further directions.
(82) Costs reserved.
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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