Dent v Burke - [2019] ACTSC 166

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dent v Burke

Citation:

[2019] ACTSC 166

Hearing Date:

22 May 2019

Decision Date:

28 June 2019

Before:

Mossop J

Decision:

See [51]

Catchwords:

DEFAMATION – Hearing of separate question – whether defamatory imputations conveyed by publication – television broadcast of interview with defendant – allegations of sexual and professional misconduct by the defendant – whether denial by the defendant of sexual misconduct during interview gave rise to imputation that plaintiff had lied or made false allegation to join a “witch-hunt” – interviewer sceptical of defendant’s denials – publication as a whole does not give rise to pleaded imputations

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 1521

Cases Cited:

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Bik v Mirror Newspapers [1979] 2 NSWLR 679

Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 79 ALJR 1716

Gorton v Australian Broadcasting Commission and Walsh (1973) 1 ACTR 6

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657

Lewis v Daily Telegraph [1964] AC 234

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418

Webb v Bloch (1928) 41 CLR 331

Parties:

Wendy Dent (Plaintiff)

Donald Burke (Defendant)

Representation:

Counsel

M Polden (Plaintiff)

S Chrysanthou (Defendant)

Solicitors

Aulich Civil Law (Plaintiff)

Kalantzis Lawyers (Defendant)

File Number:

SC 290 of 2018

MOSSOP J:

Introduction

1.           On 27 November 2017, the defendant, Donald (Don) Burke gave a half hour long interview on a television program called “A Current Affair”. That is a program aired on television broadcasting stations affiliated with the National Nine Network and on various associated websites.
2.           On 20 June 2018, the plaintiff commenced these proceedings claiming damages for defamation arising from publication of the matters in the interview. The only defendant is Mr Burke who is identified as having published the broadcast. That approach relies upon the broad scope of liability for publication as explained in Webb v Bloch (1928) 41 CLR 331 at 363-364.
3.           The interview followed the disclosure of a variety of allegations of bullying and sexual misconduct made against the defendant. During the course of the interview, the defendant made a number of admissions about bullying behaviour and extramarital affairs but generally denied the allegations of sexual misconduct. Amongst those allegations were allegations attributed to the plaintiff that, when auditioning for a part on the defendant’s television program, the defendant asked her to audition naked to the waist. The imputations alleged by the plaintiff to be conveyed by the interview are:
1.        That the plaintiff lied when she alleged that [the defendant] asked her to audition naked to the waist when she sought to be engaged on the program “Burke’s Backyard”; and
2.        That the plaintiff made a false allegation…

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.

Continue reading Dent v Burke

Details

AGLC: Dent v Burke [2019] ACTSC 166
Case: [2019] ACTSC 166
Decision Date: 28 June 2019

CaseChat Overview and Summary

In the case of Dent v Burke, the plaintiff, Dent, sought damages for defamation against the defendant, Burke. The dispute arose from comments made by Burke during a television interview, which Dent claimed defamed him. Burke, during the interview, denied allegations of sexual misconduct, but the interview was conducted in a manner that suggested scepticism towards Burke's denials. Dent argued that this scepticism led viewers to infer that Dent had lied or falsely accused Burke to join a "witch-hunt." The matter was heard in the Federal Court of Australia.

The legal issues that the court had to decide included whether the television broadcast conveyed the defamatory imputations as pleaded and whether the publication as a whole gave rise to the pleaded imputations. The court needed to assess whether the interview's tone and content led viewers to infer that Dent had lied or falsely accused Burke. The court also considered the overall context of the broadcast to determine if the pleaded imputations were conveyed.

The court found that the broadcast did not convey the pleaded imputations as it was not apparent from the broadcast as a whole that Dent had lied or falsely accused Burke to join a "witch-hunt." The court emphasised that the publication as a whole did not give rise to the pleaded imputations. The court concluded that the broadcast did not lead a reasonable viewer to infer that Dent had lied or falsely accused Burke. Therefore, the court held that the defendant was not liable for defamation.

The final orders of the court were that the defendant was not liable for defamation and the plaintiff's claim was dismissed. The court found that the broadcast did not convey the defamatory imputations as pleaded and did not give rise to the pleaded imputations as a whole.

Orders