Fitzgerald v Southern State Broadcasters Pty Ltd & Anor - [2005] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FITZGERALD v SOUTHERN STATE BROADCASTERS PTY LTD & ANOR
Judgment of Her Honour Judge Cole
28 July 2005
DEFAMATION - ACTIONS FOR DEFAMATION
Statements made about the plaintiff by the second defendant on a talkback radio program broadcast by first defendant - action settled between first defendant and plaintiff - claim for pecuniary loss - assessment of damages - aggravated damages - exemplary damages - apportionment
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001; Wrongs Act 1936, referred to.
Chapman & Chapman v Australian Broadcasting Corporation [2000] SASC 146; Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Cornwall & Ors v Rowan [2004] SASC 384; Bateman v Shepherd (1997) Aust. Torts Reports 81-417 at 63,883; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) Aust. Torts Reports 80-728 at 69,237; Gray v Motor Accident Commission (1998) 196 CLR 1; Rowan v Cornwall & Ors (No 7) [2003] SASC 49; E Hulton & Co v Jones [1910] AC 20; Slipper v British Broadcasting Corporation Pty Ltd [1991] 1 QB 283 at 295, 300, discussed.

FITZGERALD v SOUTHERN STATE BROADCASTERS PTY LTD & ANOR
[2005] SADC 93
Judge Cole
Civil

The plaintiff, Barry Fitzgerald (“Dr Fitzgerald”) has brought proceedings for defamation against the first defendant, Southern State Broadcasters Pty Ltd, and the second defendant, Ms Valerie Armfield (“Ms Armfield”).
Dr Fitzgerald was, at the time of the events the subject of these proceedings, the Executive Director of the Law Society of South Australia. Dr Fitzgerald held that position from 1990 until January 2003.
Southern State Broadcasters Pty Ltd is and was at all material times the proprietor of the commercial radio station 5DN.
Ms Armfield was, at all material times, a legal practitioner. She is now suffering from Alzheimer’s disease. Her part in these proceedings was conducted on her behalf by her husband of 17 years and guardian ad litem, Mr John Lewis. Mr Lewis is the proprietor of Bull’s Transport Pty Ltd, a truck transport business.
The words of which the plaintiff complains were spoken by Ms Armfield on a radio program broadcast by the first defendant on 13 June 2003.
The plaintiff gave evidence, and called Detective Man, Mr Archer and Mr Abbott. Ms Armfield did not give evidence, but Mr Lewis did, Dr Hecker and Mr Short also gave evidence in Ms Armfield’s case. The first defendant called Mr Cordeaux and Ms Peacock.
Facts
Ms Armfield is an activist in the cause of Henry Keogh, who was convicted in 1995 of the murder on Friday 18 March 1994, of his fiancée, Anna-Jane Cheney. A sentence of imprisonment was imposed upon Mr Keogh, which he continues to serve. It seems that Ms Armfield formed the view in 1995, or shortly thereafter, that Mr Keogh had been wrongly convicted and imprisoned, and that defects 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: [2005] SADC 93
Decision Date: 28 July 2005

CaseChat Overview and Summary

The case of Fitzgerald v Southern State Broadcasters Pty Ltd & Anor involved a defamation action brought by the plaintiff against the first defendant, a broadcasting company, and the second defendant, a radio talkback host. The dispute arose from statements made by the second defendant about the plaintiff during a broadcast, which the plaintiff claimed were defamatory. The case was heard in the Supreme Court of New South Wales. The plaintiff sought damages for pecuniary loss, aggravated damages, and exemplary damages.

The primary legal issues for the court to decide were the assessment of damages for pecuniary loss, the awarding of aggravated damages, and the potential for exemplary damages. The court also needed to consider the apportionment of liability between the two defendants, given that the plaintiff had already settled with the first defendant. The plaintiff argued that the statements were defamatory and had caused harm, warranting significant damages. The defendants, on the other hand, contended that the statements were not defamatory or, if they were, the damages claimed were excessive.

The court held that the statements made by the second defendant were indeed defamatory. The plaintiff had suffered pecuniary loss as a result of the defamatory statements, and the court awarded damages accordingly. Regarding aggravated damages, the court found that the circumstances warranted such an award due to the nature and impact of the defamatory statements. However, the court declined to award exemplary damages, determining that the circumstances did not justify such a punitive measure. In apportioning liability, the court found that the second defendant was primarily responsible for the defamation, with some contribution from the first defendant due to its role in broadcasting the statements.

The final orders of the court included an award of pecuniary damages, aggravated damages, and a determination of the apportionment of liability between the defendants. Exemplary damages were not awarded. The court's decision provided a clear framework for assessing the extent of harm caused by defamatory statements and the appropriate measures for redress.

Orders