Dent v Burke

[2020] ACTCA 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Dent v Burke

Citation:

[2020] ACTCA 22

Hearing Date:

6 February 2020

DecisionDate:

5 May 2020

Before:

Burns, Loukas-Karlsson and Charlesworth JJ

Decision:

See [38]

Catchwords:

TORT – DEFAMATION – Television broadcast of an interview with the respondent – respondent referring to allegations of misconduct against him by appellant – whether primary judge erred in concluding imputations defamatory of the appellant were not conveyed by the publication – meaning to be derived from publication as a whole and not only from words spoken by the respondent – no appealable error

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1521

Civil Law (Wrongs) Act 2002 (ACT) s 116

Cases Cited:

Dent v Burke [2019] ACTSC 166

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77
Ronald v Harper (1910) 11 CLR 63
Slim v Daily Telegraph [1968] 2 QB 157
Ten Group Pty Ltd v Cornes (2012) 114 SASR 46

Webb v Bloch (1928) 41 CLR 331

Parties:

Wendy Dent (Appellant)

Donald Burke (Respondent)

Representation:

Counsel

Mr Stretton SC with Mr Crispin (Appellant)

Ms Chrysanthou with Mr Dean (Respondent)

Solicitors

Capital Lawyers (Appellant)

Kalantzis Lawyers (Respondent)

File Number:

ACTCA 32 of 2019

Decision under appeal:

Court/Tribunal:             ACT Supreme Court

Before:  Mossop J

Date of Decision:          28 June 2019

Case Title:  Dent v Burke

Citation: [2019] ACTSC 166

THE COURT

1. On 27 November 2017 the respondent, Donald Burke, participated in a half hour television interview broadcast on A Current Affair.  In that interview, Mr Burke responded to a series of allegations to the effect that he had engaged in bullying and sexual misconduct in his former role as the host of the long-running gardening program

   
   Burke’s Backyard

   .  The interview was televised nationally on stations affiliated with the National Nine Network (Channel 9) and subsequently published in the same form in the Australian Capital Territory and elsewhere on websites associated with Channel 9.

1. The appellant, Ms Wendy Dent, was among those who had made allegations of misconduct against Mr Burke.  The gravamen of her complaint was summarised in the interview and Mr Burke responded to it.

1. In June 2018, Ms Dent commenced an action for damages against Mr Burke.  She pleaded that the interview conveyed the following imputations that were defamatory of her:

(a)That the plaintiff lied when she alleged that Burke asked her to audition naked to the waist when she sought to be engaged on the program ‘Burke’s Backyard’; and

(b)That the plaintiff made a false accusation against Burke of sexual harassment, motivated by her wish to join a witch hunt against Burke.

1. Pursuant to r 1521 of the Court Procedures Rules 2006 (ACT), the question of whether the imputations were conveyed was decided separately and in advance of all other issues. The primary judge determined the question against Ms Dent and so entered judgment for Mr Burke: Dent v Burke [2019] ACTSC 166. This is an appeal from that…