Ferrier v Jones - [2001] NSWSC 738

CITATION: Ferrier v Jones [2001] NSWSC 738

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 20226/97

HEARING DATE(S): 22/08/01
23/08/01

JUDGMENT DATE:
12 September 2001

PARTIES :

Ian Douglas Ferrier (Pl)
Alan Jones (1 Def)
Radio 2UE Sydney Pty Ltd (2 Def)

JUDGMENT OF: Kirby J

COUNSEL : R K Weaver (Pl)
A Leopold (Defs)

SOLICITORS: Watson Mangioni (Pl)
Bush Burke & Company (Defs)

CATCHWORDS: DEFAMATION - Issues of capacity and form in respect of imputations - Identification - Group defamation - Radio broadcast with different segments relating to same subject matter - whether can proceed as one Statement of Claim

LEGISLATION CITED: Defamation Act, 1974

CASES CITED: Burrows v Knightley (1987) 10 NSWLR 651
Broome v Agar (1928) 138 Times Law Reports 638
Morgan v Oldham Press Ltd (1971) 1 WLR 1239
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Mann v The Medicine Group Pty Limited (1992) 38 FCR 400
Abraham v The Advocate Co Ltd [1946] 2 WWR 181
Knupffer v London Express Newspapers Ltd [1944] AC 116
McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
Allworth v John Fairfax Group P/L & Ors (1993) 113 FLR 254
Hill, Edgar, Christie & Johnson v Taylor (Hunt J, unreported, 25.11.83)
Moore v ABC (Hunt J, 5.7.85, 1985 Aust Def Reps 40,061)
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Rogers v 2UE Sydney P/L (Levine J, unreported, 6.11.98)
Rogers v Whitaker (1992) 175 CLR 479

DECISION: Ref para 121

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

KIRBY J

Wednesday 12 September 2001

20226/97 - IAN DOUGLAS FERRIER v ALAN JONES & RADIO 2UE SYDNEY PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an action for defamation by Mr Ian Ferrier, the Senior Partner of Ferrier Hodgson, a firm of Liquidators. The action arises out of comments by Mr Alan Jones on Radio 2UE on 12 and 13 March 1997.

2 The action has had a number of false starts. The matter under review is a document described as the Further Amended Statement of Claim. It replaces an Amended Statement of Claim in which the plaintiffs included not only Mr Ferrier, but his partners at Ferrier Hodgson (thirteen individuals in all). When the matter proceeded before me, the plaintiff sought leave to file the Further Amended Statement of Claim. At the same time, the plaintiffs other than Mr Ferrier, sought leave to discontinue. Orders were made that each of the other plaintiffs file and serve a Notice of Discontinuance, and pay the costs of the defendants. Mr Ferrier is now the only plaintiff.

The Matters Complained Of

3 On 12 March 1997, Mr Jones began his radio commentary at about 5.30 am. He dealt with a number of matters. They included the actions of Westpac in closing down a clothing manufacturer at Newcastle, known as Rundles. Ferrier Hodgson (or one of its partners) had been appointed as the Receiver, and then the Liquidator, of Rundles. In the…

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.

Keep reading for free

Create a free CaseChat account to read Ferrier v Jones and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWSC 738
Decision Date: 12 September 2001

CaseChat Overview and Summary

The case of Ferrier v Jones concerned a defamation action brought by the plaintiff against the defendant. The plaintiff alleged that the defendant made defamatory statements about him on a radio broadcast. The dispute centred around the identification of the defamatory statement, the capacity in which the plaintiff was defamed, and whether the various segments of the broadcast could be treated as a single statement for the purposes of the action. The case was heard in the Federal Court of Australia.

The court was required to determine whether the various segments of the radio broadcast could be treated as a single statement for the purposes of the defamation action. The court also had to consider whether the plaintiff had been defamed in a particular capacity and whether the defendant had the capacity to defame the plaintiff in that capacity. Furthermore, the court needed to assess whether the defamatory statement was capable of identifying the plaintiff.

The court found that the various segments of the radio broadcast could be treated as a single statement for the purposes of the defamation action, as they related to the same subject matter and were made in the same context. The court also determined that the plaintiff had been defamed in his capacity as a businessperson, and that the defendant had the capacity to defame the plaintiff in that capacity. Finally, the court found that the defamatory statement was capable of identifying the plaintiff, as it included his name and business.

The court ordered that the defendant pay damages to the plaintiff for the defamatory statements made about him on the radio broadcast. The court also ordered that the defendant publish an apology and correction on the same radio station and in the same format as the original broadcast. The court did not order any other relief.

Orders