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 2008JUDGMENT 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 2005CASES 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 146PARTIES: 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
40096/07
Tuesday 1 April 2008SPIGELMAN CJ
BASTEN JA
CAMPBELL JA
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
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]Per Spigelman CJ, Basten and Campbell JJA agreeing
2 The statutory duty…
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- Case
- [2008] NSWCA 37
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the television broadcast was capable of conveying the specific imputations pleaded by the plaintiff, and whether leave should be granted to amend the pleadings to include these imputations. The court was required to assess the meaning of the broadcast and determine if the proposed imputations were reasonably open to be inferred by a listener.
The Court of Appeal, in allowing the appeal in part, found that the primary judge had erred in striking out certain imputations pleaded by the plaintiff. The court reasoned that the broadcast, when considered in its context, was capable of conveying the imputations at paragraphs 3(b), 3(c), 3(f), and 3(h) of the Fourth Further Amended Statement of Claim. Consequently, the court granted leave to appeal from the judgment striking out these imputations and set aside that order, allowing the plaintiff to pursue these claims. However, the court refused leave to appeal from a separate judgment of Nicholas J delivered the following day. The costs of the appeal were ordered to be shared equally between the parties.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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