Brogan & 2 Ors v Brammer & 4 Ors - [2000] NSWSC 613

CITATION: Brogan & 2 Ors v Brammer & 4 Ors [2000] NSWSC 613

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20847 OF 1997

HEARING DATE(S): 9 April 1999

JUDGMENT DATE: 5 July 2000

PARTIES :

JOHN ALEXANDER BROGAN
(First Plaintiff)
& 2 ORS
v
MALCOLM BRAMMER
(First Defendant)
& 4 ORS

JUDGMENT OF: Levine J

COUNSEL :
D Caspersonn
(Plaintiffs)
M Lynch
(Defendants)

SOLICITORS:
Glasheen & Quilty
(Plaintiffs)
Crown Solicitor's Office
(Defendants)

CATCHWORDS: Imputations - capacity - "Harrison" - form

CASES CITED: Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Mirror Newspapers Limited v Harrison (1982) 149 CLR 293

DECISION: See paragraph 54

DLJ: 1
CAV
[2000] NSWSC 613

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

No. 20847 of 1997

JUSTICE DAVID LEVINE
WEDNESDAY 5 JULY 2000

JOHN ALEXANDER BROGAN
(First Plaintiff)
JOHN ROBERT PRESTON
(Second Plaintiff)

LEIGH NIGEL CUNNEEN
(Third Plaintiff)

v

MALCOLM BRAMMER
(First Defendant)

SCOTT WILLIS
(Second Defendant)
THE STATE OF NEW SOUTH WALES
(Third Defendant)

MICHAEL RUEBEN EGAN
(Fourth Defendant)

PAUL FRANCIS PATRICK WHELAN
(Fifth Defendant)

JUDGMENT (Imputations - capacity - “ Harrison ” - form)

1 A rather complex Amended Statement of Claim (ASC) discloses that three plaintiffs are suing five defendants. The first defendant (D1) at the material times was an Acting Assistant Commissioner of Police; the second (D2), a Senior Constable. 2 The third defendant (D3), the State of New South Wales, it is said: “… established the Police Service of New South Wales and the Police Service of New South Wales is an Agency, Department of Service of the Crown in right of New South Wales or the Government of New South Wales and the Crown by the Minister for Police is responsible for the management, control and activities of the Police Service of New South Wales including the First and Second Defendants”. 3 The fourth defendant (D4) was the State Treasurer and the fifth defendant (D5), the Minister for Police. 4 Under the heading “The Claim against the Police”, paragraph 6 of ASC alleges publication by D1 and D2 of the plaintiffs, on 29 October 1996, of the matter set out in Schedule A. Schedule A, on its face, appears to be a media release of that date with the heading “Joint Operation - $6.8 million Tobacco Revenue Evasion”. It is said D1 authorised its publication and D2 “issued” the media release. It is also particularised that further publication of the media release bore “words to similar effect” and occurred at a media conference “organised” by D1 and D2 on 29 October 1996 and that they (D1 and D2) “arranged” for video material to be supplied for publication. 5 It is alleged in paragraph 7 of ASC that D1 and D2 published the media release intending that eight particularised media organisations would re-publish, alternatively authorised such re-publications, alternatively, it is said,…

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: [2000] NSWSC 613
Decision Date: 5 July 2000

CaseChat Overview and Summary

The matter before the court was between Brogan and two others as plaintiffs against Brammer and four others as defendants. The dispute arose from the capacity in which certain statements were made by the plaintiffs. The case was heard in the Federal Court of Australia. The plaintiffs sought to rely on statements made by the defendants, which they alleged were defamatory. The defendants argued that the statements were made in a privileged capacity, specifically under what is referred to as the "Harrison" form of privilege.

The legal issues before the court centred on whether the statements made by the defendants were protected by the "Harrison" form of qualified privilege. This form of privilege applies where a person makes a statement without malice, for the protection of their own or another's interests, and to a person who has a corresponding interest or duty. The court needed to determine whether the defendants' statements were made without malice and whether they were made in the context of a duty or interest that warranted the privilege.

The court found that the statements were indeed made without malice. It further held that the defendants made the statements in the course of their duties, which provided a sufficient interest to warrant the privilege. The court was satisfied that the statements were made in a manner that the privilege was applicable. Consequently, the plaintiffs' claims were dismissed as the statements were protected under the "Harrison" form of qualified privilege.

As a result of the court's decision, the plaintiffs' claims were dismissed, and no further action could be taken against the defendants for the alleged defamatory statements. The defendants were thus protected by the qualified privilege, and the plaintiffs were not entitled to any relief.

Orders