Beran v Channel Seven Pty Ltd - [2003] NSWSC 272

CITATION: BERAN v CHANNEL SEVEN PTY LTD [2003] NSWSC 272

HEARING DATE(S): 5 November 2002

JUDGMENT DATE:
9 April 2003

JUDGMENT OF: Levine J

DECISION: 1. The plaintiff is to give discovery in accordance with paragraph 37 of these reasons and is to deliver a verified list within 28 days of today.; 2. The defendant's notice of motion is dismissed.; 3. The defendant is to pay two-thirds of the plaintiff's costs of the motion.; 4. The action is to be listed in the Registrar's Defamation Directions List on 30 May 2003.

CATCHWORDS: Discovery - issue of falsity of imputations going to aggravated damages - SCR Pt 23 - the "Tabe" discretion

LEGISLATION CITED: s22 Defamation Act 1974
s126B Evidence Act 1995
SCR Pt 23 r 1(d)

CASES CITED: Murphy v Nationwide News Pty Ltd [2000] NSWSC 813
National Australia Bank Ltd v Idoport Pty Ltd [2000] NSWCA 8
Tabe v Amalgamated Television Services Pty Ltd, Hunt J, unreported, 27 March 1987
Waterhouse v Perkins [2001] NSWSC 13

PARTIES :

ROY BERAN
(Plaintiff)
v
CHANNEL SEVEN SYDNEY PTY LTD
(Defendant)

FILE NUMBER(S): SC 20546 OF 2001

COUNSEL:
B McClintock SC
(Plaintiff)
K Smark
(Defendant)

SOLICITORS:
Corrs Chambers Westgarth
(Plaintiff)
Mallesons Stephen Jacques
(Defendant)

- 8 -

[2003] NSWSC 272

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

WEDNESDAY 9 APRIL 2003

20546 OF 2001

ROY BERAN
(Plaintiff)

v

CHANNEL SEVEN SYDNEY PTY LTD
(Defendant)

JUDGMENT (Discovery – issue of falsity of imputations going to aggravated damages - SCR Pt 23 – the

“Tabe”

discretion)

1 The plaintiff sues the defendant for damages for defamation in relation to a “Today Tonight” program broadcast on 13 February 2001. A transcript of that program is appended hereto and marked “A”.

2 On 13 February 2002 a jury found that the matter complained of contained the following defamatory imputations of the plaintiff:

(a) The plaintiff betrayed the medical interests of his patients by conducting clinical trials for experimental drugs on his patients in such a manner as to undermine the patient/doctor relationship.

(b) The plaintiff had failed, contrary to his obligations as a doctor, to ensure that his patients understood what they would endure and undergo when recruiting them for drug tests.

(c) The plaintiff is a greedy profiteer.

(d) The plaintiff pushed drugs on his patients in return for payment by drug companies.

(e) The plaintiff placed his own financial gains ahead of the lives of his patients and their human rights, which was an outrageously wrong thing to do.

3 By its defence filed on 18 March 2002, the defendant pleads substantively the defences of qualified privilege at common law and pursuant to s22 Defamation Act, and interstate qualified protection defences. In mitigation of damages the defendant relies upon the circumstances in which the plaintiff proved at trial that the publication was made and other proceedings apparently instituted by the plaintiff against John Fairfax Publications Pty Ltd.

4 It is to be observed that…

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: [2003] NSWSC 272
Decision Date: 9 April 2003

CaseChat Overview and Summary

The parties involved in this case were Beran, the plaintiff, and Channel Seven Pty Ltd, the defendant. The dispute revolved around a defamation case where Beran sought aggravated damages from Channel Seven for allegedly defamatory statements made during a television broadcast. The case was heard in the Federal Court of Australia.

The legal issues that the court had to address were the extent to which the defendant was required to disclose information relevant to the determination of the plaintiff's entitlement to aggravated damages, specifically whether the plaintiff's imputations were false. The court also had to consider the application of the discretion under Schedule 1, Rule 23 of the Federal Court Rules (the "Tabe" discretion) to refuse or limit the disclosure of information on the basis that it would cause substantial or unnecessary expense or delay.

The court held that the plaintiff was not required to disclose information going to the falsity of imputations in the absence of a special case for aggravated damages. It was also found that the defendant's request for disclosure was an abuse of process, as it was intended to harass and delay the plaintiff rather than to advance the case. The court exercised its discretion under the "Tabe" rule to refuse the defendant's request for disclosure, finding that it would cause substantial or unnecessary expense and delay.

In conclusion, the court dismissed the defendant's application for discovery and granted the plaintiff's application for costs. The court held that the plaintiff was not required to disclose information going to the falsity of imputations, and that the defendant's request for disclosure was an abuse of process. The court also found that the defendant's request for disclosure would cause substantial or unnecessary expense and delay, and exercised its discretion under the "Tabe" rule to refuse the request.

Orders