Bilal v Nine Network Australia Pty Ltd

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bilal v Nine Network Australia Pty Ltd

Citation:

[2017] ACTSC 388

Hearing Date:

11 December 2017

DecisionDate:

18 December 2017

Before:

Mossop J

Decision:

See [33]

Catchwords:

TORTS – DEFAMATION – Application to strike out imputations – whether imputations capable of arising – sensational television broadcast – particulars of claim for loss to businesses – need for proper particulars in or accompanying statement of claim

Legislation Cited:

Court Procedures Act 2004 (ACT), s 5A(4)

Court Procedures Rules 2006 (ACT), rr 425, 430, 433(1), 433(2)-(3), 433, 1304, 1305
Firearms Act 1996 (ACT), s 227

Uniform Civil Procedures Rules 2005 (NSW), r 14.30(3)

Cases Cited:

Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; 43 NSWLR 158

Chiguvare v Seven Network (Operations) Ltd [2015] ACTSC 285

Parties:

Ali Bilal (Plaintiff)

Nine Network Australia Pty Limited (First Defendant)

Steven Marshall (Second Defendant)

Representation:

Counsel

S Littlemore QC (Plaintiff)

M Richardson (First and Second Defendant)

Solicitors

Ben Aulich & Associates (Plaintiff)

Mark O’Brien Legal (First and Second Defendant)

File Numbers:

SC 345 of 2017

MOSSOP J:

Introduction

1. The plaintiff has alleged in these proceedings that he was defamed by a segment on a television program called “A Current Affair” which was broadcast on 4 July 2017.  That claim is outlined in his Statement of Claim filed 8 September 2017.

1. By application in proceedings filed on 10 October 2017 the defendants have sought to strike out, pursuant to r 425 of the Court Procedures Rules 2006 (ACT) certain paragraphs of the Statement of Claim on the basis that they disclose no cause of action or that they may tend to prejudice, embarrass or delay the fair trial of the proceedings. As a result of an indication from the solicitors for the plaintiff that certain aspects of the Statement of Claim are to be amended, the area of contention arising from the application in proceedings has been narrowed.

1. The general principles applicable to challenges to imputations are summarised in Chiguvare v Seven Network (Operations) Ltd [2015] ACTSC 285 (‘Chiguvare’) at [5]–[9]:

5.If reasonable minds may differ as to whether an imputation is capable of being conveyed, then that imputation must be left to the tribunal of fact: see [Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36] at [72]. The High Court’s decision in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 (‘Favell’) illustrates that it may be difficult to successfully contend that a finder of fact could not reasonably conclude that the challenged imputation arose.

6.Imputations must be clear in their terms and imprecise imputations will be struck out: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 140 (‘Drummoyne’).  I would however note that what is required in any given case involves a judgment being made as to the degree of particularity or generality which is appropriate to the occasion.  In Drummoyne Gleeson CJ articulated the nature…