Channel Seven Adelaide Pty Ltd v S, DJ

[2007] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

CHANNEL SEVEN ADELAIDE PTY LTD v S, DJ

[2007] SASC 117

Judgment of The Full Court

(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice David)

4 April 2007

DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF DEFENCE OR PLEA - JUSTIFICATION

Action for alleged libellous statements in television broadcast in which the plaintiff/respondent was named as a suspect in a murder case - appeal from interlocutory order of Master striking out defence plea of particulars of justification - held that particulars properly struck out on the ground that they set out the nature and outcome of police investigations, whereas justification must be based on objective and direct evidence of actions or statements by the defendant/appellant - particulars also breached the "repetition" rule - appeal dismissed.

DEFAMATION - FAIR COMMENT - IN GENERAL - DISTINCTION BETWEEN COMMENT AND STATEMENT OF FACT

Cross-appeal by plaintiff/respondent in relation to Master's refusal to strike out defendant/appellant's plea of fair comment - discussion of distinction between comment and statement of fact - held that to say of somebody that they are a suspect in a murder case is to make a straightforward statement of fact which cannot be characterised as a statement of opinion - cross-appeal allowed.

Supreme Court Civil Rules 2006 r 280(2); Criminal Law (Forensic Procedures) Act 1988 s 19, referred to.
Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Whelan v John Fairfax & Sons (1988) 12 NSWLR 148; Shah and Anor v Standard Chartered Bank [1999] QB 241; Jackson v John Fairfax & Sons Ltd and Anor (1981) 1 NSWLR 36; Rakimov v Australian Broadcastng Corporation (unreported, Supreme Court of New South Wales, 25 January 2001, judgment no [2001] NSWSC 10), discussed.
S v Channel Seven Adelaide Pty Ltd and Anor (unreported, White J, 24 February 2005, judgment no [2005] SASC 182); Channel Seven Adelaide Pty Ltd and Anor v S, DJ (unreported) Full Court, 20 November 2006, judgment no [2006] SASC 10); S, DJ v Channel Seven Adelaide Pty Ltd and Anor (unreported), Full Court, 8 March 2007, judgment no [2007] SASC 80), considered.

CHANNEL SEVEN ADELAIDE PTY LTD v S, DJ
[2007] SASC 117

Full Court:  Perry, Duggan and David JJ

1. PERRY J. Corrina Marr was murdered on 4 July 1997. Despite an extensive police investigation, no-one has so far been charged with the crime.

2. In August 2000, Ms Patricia Draper, a member of the House of Representatives, undertook a trip abroad, described as “overseas study travel”.

3. The plaintiff, as at the time of institution of these proceedings in 2004, was a 34-year old professional photographer.  He accompanied Ms Draper on the trip.

4. On Friday and Saturday 14 and 15 May 2004 Channel Seven Adelaide Pty Ltd (“Channel Seven”) broadcast on television a program described as a “promotion” for it’s Today Tonight program scheduled to go to…