Broome v Richardson - [2002] NSWSC 446

CITATION: Broome v Richardson & Anor [2002] NSWSC 446

FILE NUMBER(S): SC 20468/00

HEARING DATE(S): 13 May 2002
14 May 2002

JUDGMENT DATE: 1 November 2002

PARTIES :

John Harold BROOME (Plaintiff)
Graham RICHARDSON (1st Defendant)
HARBOUR RADIO P/L (2nd Defendant)

JUDGMENT OF: Simpson J at 1

COUNSEL : K Smark (Plaintiff)
G Reynolds SC (Defendants)

SOLICITORS: Deacons (Plaintiff)
Corrs Chambers Westgarth (Defendants)

CATCHWORDS: defamation - release of information known as "leaking" - condonation - capacity of matter complained of to convey imputations pleaded - reference to Watergate - composite of ideas within imputations pleaded - transitory nature of radio broadcasting - linkage between broadcasts

CASES CITED: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Burrows v Knightly (1987) NSWLR 651
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130, unreported, 9 March 2001

DECISION: (i) I grant leave to the plaintiff to file a second further amended statement of claim, in the form proposed (with the exception of the proposed imputations numbered 4(c) and 6(b)), and subject to the further amendment of imputation 8(a); (ii) I order that the plaintiff pay any costs thrown away by the amendment but otherwise order each party to pay his or its own costs.

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

SIMPSON J

Friday 1 November 2002

20468/00
John Harold BROOME v Graham RICHARDSON & Anor
JUDGMENT

1 HER HONOUR: By statement of claim filed on 29 August 2000 the plaintiff claimed damages for defamation said to arise out of a series of radio broadcasts published by the first and second defendants on 29 June 1999. The statement of claim has been amended a number of times since then. The present proceeding is an application by the plaintiff to file what is entitled a “Second Further Amended Statement of Claim”. The defendants oppose the grant of leave on the sole ground that to grant leave would be futile since the proposed pleading is defective and would, on application by the defendants, be struck out in whole or in large part.

2 The claim as formulated in the document now under consideration concerns three separate segments of an early morning radio programme of which the first defendant was the presenter; the second defendant was the company that conducted and operated the radio station on which he broadcast. (For the purpose of the present determination only I shall assume such facts as are uncontroversial for this purpose, either as pleaded, or as assumed during the course of argument, including the words said to have been published.)

3 The general subject matter of the broadcasts could be said to be an investigation by the National Crime Authority (“the NCA”) into conduct alleged against a member of Parliament, Dr Andrew Theophanous. From the words attributed to the first defendant it may be inferred that the investigation had been extensively covered by a journalist called Kate McClymont in…

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: [2002] NSWSC 446
Decision Date: 1 November 2002

CaseChat Overview and Summary

The case involved the respondent, a former member of the Australian Parliament, who alleged defamation by the applicant, who was a journalist and broadcaster. The respondent claimed that the applicant had defamed him by releasing information that was known as "leaking" and by condoning a series of defamatory imputations. The High Court of Australia heard the case. The central legal issue was whether the matter complained of had the capacity to convey the imputations pleaded by the respondent, including whether the reference to Watergate and the composite of ideas within the imputations could be understood in the context of radio broadcasting. The transitory nature of radio broadcasting and the linkage between broadcasts were also considered.

The court found that the matter complained of did have the capacity to convey the imputations pleaded. The reference to Watergate was a well-known event that would have been understood by the audience as a reference to a major political scandal. The composite of ideas within the imputations could be understood in the context of radio broadcasting, as the broadcasts were linked together by the theme of political scandal and wrongdoing. The court also found that the transitory nature of radio broadcasting did not prevent the matter complained of from conveying the imputations, as the broadcasts were recorded and could be listened to again. The court rejected the respondent's argument that the matter complained of was not capable of conveying the imputations pleaded because it was a composite of ideas.

The court's decision was that the matter complained of did have the capacity to convey the imputations pleaded and that the reference to Watergate and the composite of ideas within the imputations could be understood in the context of radio broadcasting. The court also found that the transitory nature of radio broadcasting did not prevent the matter complained of from conveying the imputations. The court dismissed the respondent's appeal and ordered him to pay the applicant's costs. This decision clarified the legal principles relating to defamation in the context of radio broadcasting and provided guidance for future cases involving similar issues.

Orders