Dennis v Australian Broadcasting Corporation

New South Wales

Court of Appeal

CITATION:	Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
HEARING DATE(S):	19 March 2008
JUDGMENT DATE:	1 April 2008
JUDGMENT OF:	Spigelman CJ at 1; Basten JA at 34; Campbell JA at 35
DECISION:	1 Grant leave to appeal from the judgment of Nicholas J of 6 February 2007. 2 Set aside his Honour’s order striking out the imputations pleaded by the plaintiff at pars 3(b), 3(c), 3(f) and 3(h) of the Fourth Further Amended Statement of Claim. 3 Refuse leave to appeal from the judgment of Nicholas J of 7 February 2007. 4 The respondent pay half the costs of the appeal of the applicant/appellant.
CATCHWORDS:	Defamation – Publications – Television broadcast – Whether capable of conveying defamatory “acquiescence” imputations - Practice and Procedure – Pleadings – Whether leave to be granted to amend pleadings
LEGISLATION CITED:	Civil Procedure Act 2005 Defamation Act 1974 Uniform Civil Procedure Rules 2005
CASES CITED:	Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
PARTIES:	Noel Dennis (Applicant/Appellant) Australian Broadcasting Corporation (Respondent)
FILE NUMBER(S):	CA 40096/07
COUNSEL:	C A Evatt and C J Dibb (Applicant/Appellant) A T S Dawson (Respondent)
SOLICITORS:	Dennis & Co (Applicant/Appellant) Australian Broadcasting Corporation, Legal Services (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20077/06
LOWER COURT JUDICIAL OFFICER:	Nicholas J
LOWER COURT DATE OF DECISION:	6 February 2007 and 7 February 2007

- 10 -

40096/07

SPIGELMAN CJ
BASTEN JA
CAMPBELL JA

Tuesday 1 April 2008

Dennis v Australian Broadcasting Corporation

FACTS

The respondent broadcast a television programme which concerned the failure of an investment scheme promoted by a company called Nu-Tec. The principal focus of the broadcast was upon a Mr Gregory Symons. Two paragraphs of the broadcast, however, expressly mentioned the applicant: one expressing that he shared a “controlling interest” in Nu-Tec with Mr Symons, the other referring to him as Nu-Tec’s “legal adviser”. The applicant’s Fourth Further Amended Statement of Claim contained four imputations which alleged “acquiescence” in the conduct of Nu-Tec and Mr Symons. Arising as a separate question, Nicholas J ordered that those imputations be struck out on the basis that the imputations were incapable of arising. The following day the applicant sought leave to file a Fifth Further Amended Statement of Claim which contained four imputations asserting active conduct on the same terms as the previous acquiescence imputations. Nicholas J refused the application.

The applicant seeks leave to appeal the two decisions of Nicholas J.

HELD

Per Spigelman CJ, Basten and Campbell JJA agreeing

1 The four acquiescence imputations were capable of arising from the broadcast in the light of the references to the allegedly shared “controlling interest” held by the applicant and the “legal adviser” capacity of his role. [10]–[12], [15], [34], [35]

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 referred to.

2 The statutory duty…