Ennis v TCN Channel Nine Pty Limited

[2007] NSWSC 1106

CITATION:	ENNIS v TCN CHANNEL NINE PTY LIMITED [2007] NSWSC 1106
HEARING DATE(S):	17 and 26 September 2007
JUDGMENT DATE :	8 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	On 10 October 2007 the parties provided draft minutes of order and following argument as to costs, the following orders were made: 1. Leave granted to the plaintiff to commence these proceedings under s 9(3) of the Defamation Act 1974.; 2. The plaintiff to file and serve an amended statement of claim within 7 days.; 3. The parties approach the list clerk for the purpose of obtaining a s 7A hearing date.; 4. Should any imputation be found by the jury to arise and to be defamatory at the s 7A trial, then these proceedings are to be consolidated with Supreme Court of New South Wales proceedings 20093 of 2006.; 5. Costs will be costs in the cause.; 6. Liberty to restore the matter on three days notice to the Defamation List.
CATCHWORDS:	DEFAMATION – imputations in original proceedings arising from a television broadcast – fresh proceedings commenced pleading imputations arsing from the introduction to the broadcast – introduction 45 minutes before the main broadcast – attempt by plaintiff to amend statement of claim in original proceedings – amendment not pursued due to concessions made by the defendant – whether the plaintiff is estopped from commencing fresh proceedings – whether leave required to bring fresh proceedings
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Henderson v Henderson (1843) 3 Hare 100; 67 ER 313, 319 Lee & Anor v Kim [2006] NSWCA 384 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
PARTIES:	Kevin John Ennis (Pltf) TCN Channel 9 (Def)
FILE NUMBER(S):	SC 2007/20104
COUNSEL:	C A Evatt/R Rasmussen (Pltf) B R McClintock SC/M Richardson (Def)
SOLICITORS:	Bale Boshev, Lawyers (Pltf) Johnson Winter & Slattery (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

McCLELLAN CJ at CL

MONDAY 8 OCTOBER 2007

20104/07 ENNIS v TCN CHANNEL NINE PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff has commenced proceedings by statement of claim in which he claims damages for defamation. He complains that in a television program broadcast by the defendant, known as the “Sunday” program, on 17 February 2002 he was defamed by a broadcast which conveyed the following imputations.

a. the plaintiff is a people smuggler;
b. the plaintiff plied his evil trade of people smuggling while on the payroll of the Australian Federal Police;
c. the plaintiff deceived the Australian Federal Police because he engaged in people smuggling while on their payroll;
d. the plaintiff carried out one of the world’s most successful people smuggling rackets;
e. the plaintiff conned both Canberra and Indonesia while he made himself a fortune.

2 The plaintiff sued the defendant in earlier proceedings in which a trial pursuant to s 7A of the Defamation Act 1974 has been concluded. The earlier proceedings pleaded imputations arising from the same “Sunday” program. However, the earlier proceedings related to the main part of the broadcast. The subsequent proceedings plead imputations arsing from the introduction which occurred some 45 minutes before the main program was broadcast.

3 The jury in the earlier proceedings returned verdicts pursuant to s 7A and found the following imputations established:

a. the plaintiff is a smuggler of illegal immigrants;
b. the plaintiff is a crook;
c. the plaintiff betrayed the Australian authorities he was paid to serve
…
f. the plaintiff robbed his investors;
…
h. the plaintiff is dishonest;
i. the plaintiff is a double- crosser.

4 The plaintiff brought the original proceedings after retrieving a transcript of the broadcast which was available on the defendant’s website. However, that transcript was not complete and included only the main portion of the broadcast and not its introduction. The plaintiff’s counsel only became aware of the introduction within a couple of working days of the commencement of the proceedings.

5 To overcome this difficulty counsel for the plaintiff sought to amend the statement of claim in the original proceedings on the morning of the 7A trial. He had previously notified the defendant’s counsel of his intention. The application was opposed by the defendant. During the course of submissions senior counsel for the defendant said that the application was opposed “because of the possibility of prejudice, the lack of explanation of what is going on and why this has happened, in relation to the material described as the introduction to Part 1 we opposed leave to amend; … It’s impossible now to know, and this is the sort of thing that would affect my address to the jury. It does affect the way things are seen by people.”

6 Later, in his submissions counsel for the defendant accepted that there was a gap of 45 minutes between the two broadcasts. In a statement which in appropriate circumstances would be understood as a concession counsel said “ the reason why I have a problem with it, your Honour, is the 45 minute gap, which means that it is not the same matter complained of. One would not be seen by the law as being the same publication, and the reason why is that you would not necessarily expect the ordinary reasonable viewer to sit there and watch the entirety of the Sunday program.”

7 Later, counsel said: “Mr Evatt says, and he is correct, given the timing, that there is no limitations issue in relation to New South Wales for the first. If that’s the case, it means he suffered no insuperable prejudice himself because he then commenced proceedings against us on that segment.”

8 Mindful of the concessions made by counsel for the defendant the plaintiff did not pursue the application to amend the statement of claim and the matter proceeded to verdict before the jury without amendment.

9 The plaintiff has subsequently commenced fresh proceedings and pleaded the imputations to which I have referred. Notwithstanding the position which counsel adopted at the earlier hearing the defendant now submits that the plaintiff is estopped from commencing fresh proceedings. It is further submitted that before he can bring those proceedings leave must be obtained pursuant to s 9(3) of the Defamation Act.

10 In my opinion the defendant’s submission should be rejected.

11 The operation of the doctrine of estoppel in relation to defamation proceedings in New South Wales was considered by the Court of Appeal in Lee & Anor v Kim [2006] NSWCA 384. In that case the respondent sued for the publication of matters in the Sydney Korean Herald. In a second statement of claim the plaintiff repeated the allegedly defamatory imputations pleaded in the first statement of claim.

12 Handley JA concluded that the appellant was suing in relation to the same defamatory imputations conveyed by material published in the same issues of the newspaper. Although the causes of action were technically different, because the matters complained of were different documents the wording and layout of the articles were very similar. Handley JA held that the relevant principles were those as applied by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115 [67 ER 313, 319] and approved by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589:

“The Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”

13 In my opinion the causes of action pleaded in the first and second statements of claim as to some of the pleaded imputations do not relevantly overlap. The imputations said to arise from the introductory parts of the broadcast were distinctly separated in time and allegedly gave rise to imputations, which although similar, nevertheless as to some are significantly different to those pleaded in the first proceedings. In my opinion the two segments of the program which were significantly separated in time should be understood as two separate articles. The separation in time had the consequence that the audience for one segment may have been significantly different from the audience for the other segment.

14 An affidavit has been field by the plaintiff’s solicitor in which he explains the circumstances in which the original proceedings were commenced in reliance on the transcript. Although the solicitor was also given a number of videotapes which included the relevant broadcast he, not unreasonably in my opinion, relied on the transcript. It was only when counsel became involved that a request was made for a copy of the DVD with the consequence that the earlier segment was discovered.

15 As soon as the additional segment was discovered the plaintiff’s counsel informed senior counsel for the defendant that he would seek to amend the statement of claim. The amendment was opposed. For reasons which do not presently seem to me to have any force it was said the defendant would be prejudiced if the amendment was allowed. Given the competence and experience of counsel for the defendant I have no doubt he could have dealt with the situation. Nevertheless, presumably comforted by the defendant’s counsel’s submission that the plaintiff could bring fresh proceedings and, at least impliedly, that the defendant would not oppose the bringing of those proceedings, the application for an amendment was withdrawn. In these circumstances to my mind the defendant should be held to the stance taken at the first trial.

16 Section 9(3) of the Act is in the following terms:

“9(3) Where a person has brought proceedings (whether in New South Wales or elsewhere) for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.”

17 In my judgment s 9(3) applies to the present case. The plaintiff has brought proceedings and now seeks to bring proceedings which relate to a like matter. Leave is necessary.

18 Apart from the first proceedings the plaintiff sues in relation to a broadcast made by the defendant on 1 September 2002. The contested claim has been pleaded together with this further claim. In my view both because of the circumstances in which the proposed amendment was not pursued and because further proceedings in respect of which the entitlement of the plaintiff to bring those proceedings is not in issue, leave to bring the disputed claim should be granted. Two conditions are appropriate. Firstly, the plaintiff should be confined to imputations which are different to those pleaded in the earlier proceedings. As a consequence the grant of leave should be confined to the pleading of imputations (d) and (e) in the statement of claim. Secondly, if following the prospective 7A trial there are issues which a judge must determine with respect to the second proceedings both the initial proceedings and the current proceedings should be consolidated.

19 Counsel may address me as to the appropriate orders.

20 On 10 October 2007 the parties provided draft minutes of order and following argument as to costs, the following orders were made:

Orders:

1. Leave granted to the plaintiff to commence these proceedings under s 9(3) of the Defamation Act 1974.
2. The plaintiff to file and serve an amended statement of claim within 7 days.
3. The parties approach the list clerk for the purpose of obtaining a s 7A hearing date.
4. Should any imputation be found by the jury to arise and to be defamatory at the s 7A trial, then these proceedings are to be consolidated with Supreme Court of New South Wales proceedings 20093 of 2006.
5. Costs will be costs in the cause.
6. Liberty to restore the matter on three days notice to the Defamation List.
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