DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
Appeal from Master's refusal to strike out particulars - whether published words capable of being defamatory
District Court Act Section 43(2); District Court Rules 97.01, referred to. Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 @ 189, applied.
CHAPMAN v AUSTRALIAN BROADCASTING COMMISSION [2005] SADC 50
This is an appeal pursuant to Section 43(2) of the District Court Act and Rule 97.01 of the District Court Rules from an order of Master Norman dated the 10th of January 2005. Master Norman’s order was:
“That the defendant’s application to strike out paragraph 9.2 of the plaintiffs’ amended Statement of Claim filed on the 20th of December 2004 be refused.
The only ground of appeal is that the Master erred in law in refusing to strike out paragraph 9.2.
The plaintiffs’ action is for defamation. The defendant is the operator of a radio station, National One. On the 18th of September 2004, National One broadcast an interview between one of its servants or agents, Mr Terry Lane, and Ms Margaret Simons, the author of a book about what has become known as the Hindmarsh Island Bridge Affair. Very soon after it was broadcast, a transcript of the interview was published on the defendant’s website.
Towards the end of the interview Mr Lane said this:
“And in fact how have the Chapmans finished up? They’ve been at one stage at least, bankrupted by this whole affair. What’s their position now?”
The plaintiffs claim that these words, which are set out in subparagraph 6.2 of the amended Statement of Claim are defamatory. In particular, they claim that the words carry the imputation that each of the plaintiffs may have been bankrupted two times or more. That complaint is set out in paragraph 9 of the amended Statement of Claim which reads:
“Such words particularised in subparagraph 6.2 above in the natural and ordinary meaning, carried each of the following imputations:
9.1 That each plaintiff had been made bankrupt
9.2 That each plaintiff may have been bankrupted two times or more.”
The defendant applied to the Master for that paragraph to be struck out on the basis that the words complained of are not capable of bearing a defamatory meaning.
During the course of argument before the Master, Mr Meyer for the plaintiffs conceded that the word “may” in paragraph 9.2 was bad as it pleaded a contingent imputation and itshould have read:
“9.2 That each plaintiff had been bankrupted two times or more”.
Master Norman dealt with the matter on that basis. Before me, Mr Howard for the plaintiffs, accepted that the concession had been made but submitted that there may not have been discussion before the Master whether “has” or “had” should have been substituted for “may have” in paragraph 9.2, and that “has” should now be…
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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Chapman v Australian Broadcasting Commission [2005] SADC 50
Case
[2005] SADC 50
Decision Date
CaseChat Overview and Summary
The case of Chapman v Australian Broadcasting Commission was heard in the Supreme Court of South Australia. The dispute arose from an alleged defamatory broadcast made by the Australian Broadcasting Commission. The plaintiff, Chapman, claimed that a television program broadcast by the ABC contained statements that were defamatory of his character and reputation. Chapman sought damages for the harm caused by the broadcast, arguing that the statements made were false and had damaged his reputation.
The primary legal issues before the court were whether the broadcast contained defamatory statements, and if so, whether those statements were capable of being defamatory of the plaintiff. The court had to determine the meaning and effect of the broadcast on the plaintiff’s reputation. Additionally, the court had to consider whether Chapman had adequately pleaded his case to allow the defamation claim to proceed. The ABC argued that the broadcast did not contain defamatory statements and that Chapman had not sufficiently pleaded his case.
In its reasoning, the court held that the broadcast did contain statements that were defamatory of Chapman. The court found that the statements were capable of lowering Chapman in the estimation of right-thinking members of society. The court also held that Chapman had adequately pleaded his case, and the defamation claim could proceed. The court found that the ABC had failed to establish a valid defence, and Chapman was entitled to damages. The court awarded Chapman damages for the harm caused by the defamatory broadcast, and the case was settled on these terms.