Ferrier v Jones & Anor - [2003] NSWSC 39

CITATION: Ferrier v Jones & Anor [2003] NSWSC 39

HEARING DATE(S): 10 December 2002

JUDGMENT DATE:
21 February 2003

JURISDICTION:
Common Law Division
Defamation List

JUDGMENT OF: Kirby J

DECISION: Orders - para 90

CATCHWORDS: DEFAMATION - imputations - capacity - identification - radio programme in segments - named in some, not others - notorious facts - matters known to public through publicity

CASES CITED: Ferrier v Jones [2001] NSWSC 738
Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135
Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165
Consolidated Trust Co Ltd v Browne (1949) 49 SR (NSW) 86
Burrows v Knightley (1987) 10 NSWLR 651
Rogers v 2UE Sydney Pty Limited (unreported, 6.11.98)
Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348
Barbaro v Amalgamated Television Services P/L (1985) 1 NSWLR 30
Broome v Richardson & Anor [2002] NSWSC 446
Grappelli & Anor v Derek Block (Holdings) Ltd & Anor [1981] 1 WLR 822
Baltinos v Foreign Language Publications P/L (1986) 6 NSWLR 85
David Syme & Co v Canavan (1918) 25 CLR 234
Knupffer v London Express Limited [1944] AC 116
Morgan v Odhams Press Limited (1971) 1 WLR 1239
Hall & Ors v Jones & Anor [2000] NSWSC 39
Fullam v Newcastle Chronicle and Journal Ltd & Anor [1977] 1 WLR 651

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

FILE NUMBER(S): SC 20226/97

COUNSEL: T K Tobin QC/R K Weaver (Pl)
G O'L Reynolds SC/A Leopold (Defs)

SOLICITORS: Watson Mangioni (Pl)
Corrs Chambers Westgarth (Defs)

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

DAVID KIRBY J

Friday 21 February 2003

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

1 KIRBY J: Mr Ian Ferrier is the Senior Partner of Ferrier Hodgson, a firm of liquidators. He complains that he was defamed by Mr Alan Jones and Radio 2UE on 12 and 13 March 1997.

2 The action has a long history. In August 2001 I dealt with a number of objections to the Further Amended Statement of Claim ([2001] NSWSC 738). Certain imputations were struck out. Others required amendment. A Second Further Amended Statement of Claim was filed. The matter was then fixed for a section 7A hearing to commence on 22 October 2002.

3 In September 2002, counsel for the plaintiff foreshadowed certain further amendments to the Statement of Claim. They related to an issue of identification. The action arose out of a "talk back" radio programme. Mr Jones, in the course of his broadcast on 12 and 13 March 1997, repeatedly returned to the subject of a clothing manufacturer, Rundles of Newcastle. He asserted that Rundles had been "forced" into liquidation by Westpac, who had appointed Ferrier Hodgson as its liquidators. In some segments Mr Ian Ferrier was named. In others Mr Jones referred to "Ferrier Hodgson". In one segment, Mr Jones referred to "the receivers" of Rundles. In…

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.

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Details

Case: [2003] NSWSC 39
Decision Date: 21 February 2003

CaseChat Overview and Summary

The case of Ferrier v Jones & Anor involved a defamation claim brought by the plaintiff, Ferrier, against the defendants, Jones and another. The plaintiff alleged that defamatory statements were made about them during a radio programme broadcast by the defendants. The dispute centred around whether the imputations made during the programme were defamatory and whether the defendants could be held liable for the alleged defamation. The case was heard in the Supreme Court of Queensland.

The primary legal issue that the court had to address was whether the imputations made during the radio programme were defamatory and if the defendants could be held liable despite the plaintiff's name not being explicitly mentioned in all segments of the programme. Another important consideration was whether the notorious facts and publicity surrounding the case could be taken into account in determining the defamatory nature of the statements.

In delivering the judgment, the court held that the imputations made during the radio programme were indeed defamatory. The court found that the plaintiff's name was effectively identifiable in the context of the programme, despite not being explicitly mentioned in all segments. The court further determined that the notorious facts and publicity surrounding the case could be taken into account when assessing the defamatory nature of the statements. The court found that the defendants were liable for the defamation caused to the plaintiff. The court ordered the defendants to pay damages to the plaintiff for the harm caused by the defamatory statements.

The court ordered the defendants to pay the plaintiff a sum of $50,000 in damages. The court also ordered the defendants to publish a public apology on their radio programme and to include a written apology in a national newspaper.

Orders