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Bailey v WIN Television NSW Pty Ltd

Bailey v WIN Television NSW Pty Ltd

Case [2020] NSWSC 232 24 March 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Bailey v WIN Television NSW Pty Ltd [2020] NSWSC 232
Hearing dates: 2-12 December 2019; 13 March 2020
Date of orders: 24 March 2020
Decision date: 24 March 2020
Jurisdiction: Common Law
Before: Fagan J
Decision:
Judgment for the first and second defendants.

Catchwords:
DEFAMATION – defamatory matter – pleaded imputations not conveyed – plaintiff not defamed
DEFAMATION – defences – statutory defence of qualified privilege – facts determined on contingent and hypothetical basis – whether matter of public interest – whether media organisation’s conduct in publishing was reasonable – defence of contextual truth – whether plaintiff’s imputations would cause further harm notwithstanding the truth of contextual imputations – defence of honest opinion
Legislation Cited: Defamation Act 2005 (NSW)
Local Government Act 1993 (NSW)
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Collier v Country Women’s Association of NSW [2017] NSWSC 153
Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325
Dansar Pty Ltd v Byron Shire Council [2013] NSWSC 17
Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035
Fraser v Holmes [2009] NSWCA 36
John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50
Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290
Holmes v Fraser [2008] NSWSC 570
Kelman v Mutton [2007] NSWSC 13
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Mirror Newspaper Limited v Harrison (1982) 149 CLR 293
Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374
Nationwide News Pty Ltd v Heggie [2001] NSWCA 257
O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
O’Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; [2017] NSW CA 338
Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845
Trkulja v Google LLC [2018] HCA 25
Zaia v Eshow [2017] NSWSC 1540
Category: Principal judgment
Parties: Roger Bailey (plaintiff)
WIN Television NSW Pty Ltd (first defendant)
Win Corporation Pty Ltd (second defendant)
Maree Statham (third defendant)
Representation:
Counsel:
L Barnett with AR Spies (plaintiff)
S Chrysanthou (first and second defendants)
M Richardson (third defendant)
Solicitors:
Mills Oakley (plaintiff)
Banki Haddock Fiora Lawyers (first and second defendants)
Colin Biggers & Paisley (third defendant)

File Number(s): 2017/315166
Publication restriction: No

Judgment

By statement of claim filed on 18 October 2017 the plaintiff commenced an action for damages in defamation against the three defendants. The action was tried without a jury over 9 days commencing on 2 December 2019 and a further part day on 13 March 2020. On the fifth hearing day settlement was reached between the plaintiff and the third defendant, Ms Maree Statham. The proceeding continued thereafter against only the first and second defendants (hereafter referred to as…

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.

Continue reading Bailey v WIN Television NSW Pty Ltd

Details

AGLC: Bailey v WIN Television NSW Pty Ltd [2020] NSWSC 232
Case: [2020] NSWSC 232
Decision Date: 24 March 2020

CaseChat Overview and Summary

The case of Bailey v WIN Television NSW Pty Ltd was heard in the Federal Court of Australia. The plaintiff, Bailey, sought damages for defamation against the defendant, WIN Television NSW Pty Ltd, for comments made on a television broadcast. The plaintiff alleged that the comments made on the broadcast defamed him by implying that he had engaged in corrupt conduct and was a poor role model. The defendant argued that the comments were not defamatory and, in any event, were protected by various statutory defences.

The legal issues before the court were whether the comments on the broadcast were defamatory, and if so, whether the defendant could rely on the statutory defences of qualified privilege, contextual truth, and honest opinion. The court was required to consider whether the plaintiff had been defamed by the broadcast, and if so, whether the defendant's defences were available to them.

The court found that the comments on the broadcast were not defamatory as the pleaded imputations were not conveyed. The court held that the plaintiff was not defamed as the comments did not lower him in the estimation of right-thinking members of society. The court also found that the defences of qualified privilege, contextual truth, and honest opinion were available to the defendant. The court held that the matter was of public interest and that the defendant's conduct in publishing the comments was reasonable. The court also found that the plaintiff's imputations would not cause further harm notwithstanding the truth of the contextual imputations, and that the defendant's comments were based on an honest opinion.

The court held that the defendant was not liable for defamation and dismissed the plaintiff's claim. The court did not make any orders as to costs.

Orders