Gary Burns v Harbour Radio Pty Ltd

[2008] NSWSC 1254

CITATION:	Gary BURNS v HARBOUR RADIO PTY LTD & Anor [2008] NSWSC 1254
HEARING DATE(S):	11 November 2008
JUDGMENT DATE :	27 November 2008
JUDGMENT OF:	Simpson J
DECISION:	1. Leave to amend imputations 7(a), 9(a) granted; 2. Plaintiff to elect between 5(a) and 5(c); 3. Imputations 5(e), 7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 9(c), 9(d) are struck out.
CATCHWORDS:	DEFAMATION - capacity to convey imputations - consecutive radio broadcasts - spearate publications - differ in substance
CATEGORY:	Procedural and other rulings
PARTIES:	Gary BURNS (plaintiff) HARBOUR RADIO PTY LTD (first defendant) Ray HADLEY (second defendant)
FILE NUMBER(S):	SC 2008/20380
COUNSEL:	M Richardson (plaintiff) ATS Dawson (first & second defendants)
SOLICITORS:	Johnson Winter & Slattery (plaintiff) Banki Haddock Fiora (first & second defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Thursday 27 November 2008.

2008/20380 Gary BURNS v HARBOUR RADIO PTY LTD
& Anor

JUDGMENT

1 HER HONOUR: By statement of claim filed on 29 August 2008 the plaintiff, Gary Burns, claims damages for what he alleges were imputations defamatory of him published by the defendants in three consecutive radio broadcasts, on 15, 16 and 17 June 2008. He has identified the imputations he claims were conveyed by each individual broadcast, and were defamatory of him.

2 The defendants have made certain challenges to the statement of claim. Their principal contention relates to the capacity of the broadcasts to convey the imputations pleaded, but there were also some subsidiary, or alternative, challenges.

3 Although all broadcasts were clearly part of a sequence, the plaintiff has chosen to plead them as individual publications, and the capacity of each to convey the imputations said to have been conveyed by each must therefore be determined by examining each broadcast in isolation from the others.

The publications

4 The first broadcast, on 15 June, was at 12.31pm and is attributed, almost in whole, to Mr Ray Hadley, the second defendant. It opens with a reference made by another announcer to “The Footy Show” and an apology said to have been made in relation to an incident at a hotel called The Caxton Hotel. Something about the incident may be gleaned from what follows in the broadcast, but it is far from explicit.

5 After this introduction, Mr Hadley is recorded as responding. He referred to a security guard at the Caxton Hotel, whom he named only as Greg, and who had, he said, been the subject of “footage” that had been taped earlier. He said that Greg had a disability which affected the way he spoke and his behaviour. He said that Greg had been portrayed by the host of The Footy Show as “a drunk” after an interview with a jockey had gone to air. He said that Channel Nine had apologised unreservedly to Greg and his family, claiming that “they” did not know of his disability. He said that he suspected that between the time it was recorded (on a Wednesday night) and broadcast (on Thursday night) at least one or two producers and others would have viewed it and given it the “tick of approval” – “making fun of someone who is either drunk or mentally challenged.”

6 He then said that he had himself been employed on The Footy Show before being twice sacked. He is then recorded as saying the following:

“Now, when I was there, before I was sacked twice, the then boss was a bloke called Gary Burns. He was the Executive Producer I think and Head of Sport. He’s back now, chosen by David Gyngell to run The Footy Show. When I was there, he and others, and I was a witness to this, Gary Burns encouraged the various reporters, doing what was called Street Talk, and they sent me out to do it once and I wouldn’t do it again, to get what Gary Burns referred to as ‘nuffies’. Now I’d never heard the expression before but he used it quite regularly in production meetings. He said ‘go and get the nuffies, they love the nuffies’.
Now one venue where it was conducted was the Church Street Mall at Parramatta, not far from Peter Win’s store where various people, disabled, disadvantaged, homeless and alcoholic were sorted out, and they were on Street Talk on Channel Nine …
Now I’d strongly suggest, and David Gyngell apparently is overseas, I’m quite happy so that it doesn’t get misreported to have a private conversation with him about what happened when I was at The Footy Show. You know for this shock, horror ‘Oh, we didn’t know he was disabled – that he had a disability’. That’s the only basis under which Street Talks (sic) operates. Find someone who’s disadvantaged, homeless, someone who looks a bit different to the rest of us and lets make fun of them. Let’s take the piss out of them, and that’s how it was portrayed to me. So called ‘nuffies’.
Well if that’s the way Mr Burns conducts The Footy Show it’s little wonder that its rating a caraway seed as it did on Thursday night …”

7 The plaintiff pleads that five defamatory imputations were conveyed by this publication. It pleads them as follows:

5(a) that the plaintiff as Executive Producer of The Footy Show encouraged reporters to target disabled persons for the purpose of making fun of them on The Footy Show;

(b) that the plaintiff whilst Executive Producer of The Footy Show approved for broadcast material that to his knowledge humiliated disabled persons;

(c) that the plaintiff exploited disabled people by targeting them for the purpose of humiliating them on The Footy Show;

(d) that the plaintiff is a heartless person in that he intentionally sought to humiliate a disabled person;

(e) that the plaintiff lied when he claimed The Footy Show did not know that Greg, a man who had been made fun of in the show, had a disability.

8 No objection is taken to the first, imputation 5(a). However, the plaintiff contends that the broadcast is incapable, as a matter of law, of conveying any of the remaining imputations. I shall deal with each imputation in turn.

Imputation 5(b): that the plaintiff as Executive Producer of the Footy Show approved for broadcast material that to his knowledge humiliated disabled persons

9 The focus of the argument put on behalf of the defendants was on the word “approved”, and the concept that the broadcast conveyed an imputation that the plaintiff approved the broadcast of material of the stated kind. It was pointed out that there was no direct reference in the broadcast to the plaintiff approving anything for broadcast. The response on behalf of the plaintiff was that the plaintiff was identified as Executive Producer and that it is a short step for the ordinary reasonable reader to infer that he had responsibility for the content of any broadcast. Counsel also pointed to the references to “the way Mr Burns conducts The Footy Show”, and to editors and or producers giving it “the tick of approval”.

10 In my opinion the defendants have taken too literal an approach to this question. It is well established that, in determining capacity questions, it is necessary to bear in mind that recipients of allegedly defamatory material may engage in loose thinking or reading between the lines. It is, in my opinion, a short step from what was said, particularly in identifying the plaintiff’s position, to drawing an inference that the plaintiff did approve material of the description given in the imputation. I will not interfere with imputation 5(b).

11 It was also contended that imputation 5(b) does not differ in substance from imputation 5(a). But the argument put orally was confused. When it was put to counsel that “encouraging reporters” to behave in a particular way and “approving material for broadcast” were two different things, counsel replied:

“That’s my point … where does one get the two separate notions …? One only gets the notion of encouragement. I accept that carries with it some form of approval of going out and targeting those people, but it’s a different question to sit down and approve for broadcast specific material …”

12 In my opinion the two imputations do differ in substance.

Imputation 5(c): that the plaintiff exploited disabled people by targeting them for the purpose of humiliating them on The Footy Show

13 Again, the defendants have taken a too literal approach to the question whether the matter complained of is capable of conveying the imputation. The argument put was that there was no suggestion that the plaintiff himself sought out and interviewed disabled people, but rather that he encouraged others to do so.

14 I am satisfied that a reasonable listener could infer from what was broadcast that, by encouraging others to portray disabled people in an unfavourable light, the plaintiff himself was exploiting (and targeting) those individuals. Exploitation and targeting can be done indirectly, or through an agent as well as directly or in person. I will not strike out imputation 5(c) on capacity grounds.

15 In oral submissions, it was also argued that imputation 5(c) does not differ in substance from imputation 5(a), and, in a supplementary submission that it does not differ in substance from imputation 5(d). I will deal with imputation 5(d) below.

16 I think it is correct that the concept of “exploitation” of disabled persons in imputation 5(c) adds nothing to the concept of encouraging reporters to target disabled persons in imputation 5(a). The plaintiff will have to elect on which of these imputations he proposes to proceed.

Imputation 5(d): that the plaintiff is a heartless person in that he intentionally sought to humiliate a disabled person

17 It is of some significance in relation to this imputation, and the argument directed to it, that what is said to be attributed to the plaintiff is the humiliation of “a disabled person” – that is, the individual identified as Greg; it is not, as was the case in respect of imputations (b) and (c), disabled persons as a class. The argument was that there was no suggestion in the broadcast that the plaintiff himself had any involvement in the interview and treatment of Greg. Indeed, it was argued, it was specifically alleged that it was “the host of The Footy Show” who portrayed him as drunk.

18 The argument is flawed because it assumes that only one person can be responsible for the humiliation of Greg. As was the case in respect of imputation (c), a reasonable listener might well have concluded that, while the host of The Footy Show was most directly concerned with the portrayal of Greg, that its Executive Producer, in encouraging and permitting that kind of treatment, also sought to humiliate him, and was therefore heartless.

19 Again, it was argued that imputation 5(d) does not differ in substance from imputation 5(a), because, to describe the plaintiff as heartless (for the reasons given) is no more than a rhetorical way of saying that he exploited disabled people.

20 It is true that the concept of “heartlessness” (like the concept of “exploitation”) adds nothing to what is said to have been conveyed in imputation 5(a). The difference, however, was not in that part of the imputation, but in the identification of the victim of the asserted “heartlessness”. In imputations 5(a) and (c) the victims are disabled persons as a class. In imputation 5(d) it is the individual Greg, of whom some detail was given. That is sufficient difference for the purpose of the rule.

21 Imputation 5(d) will be allowed to stand.

Imputation 5(e): that the plaintiff lied when he claimed The Footy Show did not know that Greg, a man who had been made fun of in the show, had a disability

22 The imputation derives from the following parts of the broadcast:

“Now Channel Nine today, for their credit, have apologised unreservedly to Greg and his family. They say they didn’t know of his disability … [and, much later in the broadcast] You know for this shock, horror ‘Oh, we didn’t know he was disabled – that he had a disability’. That’s the only basis under which Street Talks (sic) operates. Find someone who’s disadvantaged, homeless, someone who looks a bit different to the rest of us and let’s make fun of them …” (emphasis added)

23 There is a clear suggestion that “Channel Nine”, in apologising and claiming ignorance of Greg’s disability, was dissembling. The point made is that the broadcast does not attribute the dissembling to the plaintiff, but, instead, to “Channel Nine”.

24 On behalf of the plaintiff it was argued that “it would be perfectly logical for the ordinary reasonable listener to hear the reference … to the plaintiff as the person who conducts the show and assumed that it was the plaintiff who made the denial” and, indeed, that this would be the “obvious deduction”. It was also argued that there is a distinct suggestion that it was the plaintiff who was responsible for the denial of knowledge.

25 I do not accept the argument put on behalf of the plaintiff. It is clear, in the broadcast, that some unidentified source in Channel Nine is said to have made the apology and denied knowledge of his disability. There is nothing in it capable of suggesting that it was the plaintiff who did those things. Imputation 5(e) will be struck out.

The second broadcast

26 The second broadcast took place at 10.52am on the following day, 16 June 2008. It is apparent that it is a segment of the programme which involves calls from listeners. In the relevant passage, a caller called “Ray” telephoned. He introduced the subject matter of his call as “… regards that poor bugger in Brisbane … at the Caxton Hotel.” He expressed himself to be “quite disgusted”. The conversation that gives rise to the complaint then ensued. Mr Hadley said:

“We don’t want to take the mickey out of people who were drunk, disabled, homeless or in other way – in some other way, incapacitated …”

27 He said he had spoken to “the father” (presumably Greg’s father) and had seen “the vision” (presumably of The Footy programme). He said:

“ … to me it was obvious that the poor fellow – he was working - … that he was disabled in some way.”

28 He said that:

“ … they’ve said that they will apologise …”

29 Mr Hadley said:

“But I would like them to now say that we won’t do any more of the street talks where we target disabled, disadvantaged, homeless or drunk people … if Mr Burns wants to sue me, the Executive Producer, I’m more than happy to defend myself in the Supreme Court with video, after video after video of what they’ve been doing to people for the last 15 years. …
And all that has to happen here is – they say they made a mistake. Well good. Make the apology to the family, which they haven’t done as of about nine o’clock this morning. They said they’d do it on Saturday. So Sunday is gone. Half of Monday is nearly gone and they still haven’t made the apology. Make the apology to the family, and then give us a gold-plated guarantee that, in future, disabled, disoriented, homeless, disadvantaged people won’t be targeted in what they used to call street talk. … Say that, yes, we won’t do that any more, we won’t pick on people who appear to be a little bit out of the unusual.
I said yesterday that the one I did, and that’s the one they’re going to show, I mean, the producer, Greg – Glenn Pallister said, look, there’s a bloke over there, you know, who looks funny, get him.
You know, poor people shuffling along, homeless people who obviously don’t look normal, if there is such a thing. And all I’d like Channel Nine to say, via David Gyngell or someone else in authority, because at the moment the lunatics are running the asylum, someone in authority to say, yeah, we’re not going to do that any more, we’ve finished with all that nonsense, and we’re going to get back to entertaining and having a bit of fun.” (I have retained the punctuation as it appears in a transcript of the broadcast annexed to the statement of claim)

30 The plaintiff pleads that this broadcast conveyed the following defamatory imputations:

7(a) that the plaintiff as producer of The Footy Show intentionally targeted disabled people for the purpose of humiliating them on The Footy Show;

(b) that for the last 15 years the plaintiff whilst Executive Producer of The Footy Show approved for broadcast material that to his knowledge humiliated disabled persons;

(c) that the plaintiff exploited disabled people by making fun of them on The Footy Show;

(d) that the plaintiff is a heartless person in that as Executive Producer of The Footy Show he adopted a practice of humiliating disabled people;

(e) that the plaintiff as Executive Producer of The Footy Show dishonestly promised to apologise to the family of a disabled person humiliated on The Footy Show by the Saturday after the broadcast, when by the following Monday no apology had been made;

(f) that the plaintiff brought the game of rugby league into disrepute by intentionally targeting a disabled person for the purpose of humiliating him.

31 As I have made clear, whether any of these imputations was conveyed must be determined by reference only to what was broadcast on 16 June. It is not permissible, having regard to the manner in which the plaintiff pleads his case, to incorporate any of the material contained in the first broadcast.

32 It is appropriate to make a general comment. Taken in isolation, as it must be, this broadcast would be almost meaningless to any listener. It is plain from its content that Mr Hadley, and his caller, Ray, assumed, on the part of one another, a knowledge of the background, some of which could (if it were permissible) be derived from what was contained in the first broadcast, but some of which also depends upon a familiarity with what has been broadcast (or telecast) on a programme known as “The Footy Show”. The second broadcast would make some sense to a listener who had heard the first, or who knew about the programme “The Footy Show”, which is, in essence, apparently, the subject matter of the broadcast. Such a listener might recognise that the reference to “Street Talk” is (or appears to be) a reference to a segment of that programme which, it appears, focused upon disabled or disadvantaged individuals. But that knowledge cannot be imputed to the ordinary reasonable listener of this broadcast. It must, as I have mentioned, be assumed that that person comes to the broadcast in ignorance of what had gone before. That is a consequence of the manner in which the plaintiff has chosen to plead his case. The introduction by the caller “Ray” of the subject matter by reference to “that poor bugger in Brisbane … at the Caxton Hotel” would not have enlightened any listener who lacked knowledge of the first broadcast (or other, unidentified, material).

33 And, as I also have already mentioned, this broadcast, taken alone, is almost incoherent.

Imputation 7(a): that the plaintiff as the producer of The Footy Show intentionally targeted disabled people for the purpose of humiliating them on The Footy Show

34 The plaintiff sought leave to amend the imputation by substituting “Executive Producer” for “producer”. That leave was not opposed and is granted. Only two passages of the broadcast can be invoked in support of imputation 7(a). The first is the reference to the plaintiff as the Executive Producer; it is sufficiently clear from the context that he is said to be the Executive Producer of The Footy Show. The second is the passage I have extracted where Mr Hadley calls upon the plaintiff to make an apology to “the family” and then give a “gold-plated guarantee” that in future disabled, disoriented, homeless, disadvantaged people would not be targeted in “what they used to call Street Talk”, and that “people who appear to be a little bit out of the unusual” (sic) would no longer be picked on.

35 One point made on behalf of the defendant can be disposed of quickly. It was that nowhere is it said or implied that it was the plaintiff himself who had intentionally targeted disabled people in order to humiliate them. For reasons I have given earlier, this is too literal an approach. Once the plaintiff was identified as the Executive Producer, it is legitimate (bearing in mind that I am concerned only with the capacity of the broadcast to convey the imputation, and not whether it was actually conveyed) to infer that he was responsible for what the programme (The Footy Show) did or said.

36 While the passage I have extracted makes clear that it is said that disabled, disoriented, homeless, disadvantaged people have been “targeted” in the past, and (from the tone of the discussion) that this was for some discreditable purpose, worthy of severe criticism, nowhere is it suggested in this broadcast that this was for the purpose of humiliation. That can only be derived by impermissible reference to the earlier broadcast. The broadcast is not capable of conveying imputation 7(a). Imputation 7(a) is struck out.

Imputation 7(b): that for the last 15 years the plaintiff whilst Executive Producer of The Footy Show approved for broadcast material that to his knowledge humiliated disabled persons

37 Two points were made on behalf of the defendants. The first is that the broadcast contained no reference to the plaintiff having been Executive Producer of The Footy Show for fifteen years. On reflection, I think this is a valid point. What was said by Mr Hadley was that if the plaintiff, as Executive Producer, wished to sue, he (Mr Hadley) would respond by producing:

“video, after video after video of what they’ve been doing to people for the last fifteen years.” (bold type added)

38 It is not a necessary, or even a reasonable, inference that the plaintiff had held the position of Executive Producer of the programme for the whole of that time – “what they’ve been doing” is more reasonably a reference to what has been done by those engaged in the production of the programme over that period of time.

39 The second point is that nothing in the broadcast suggests that the plaintiff “specifically approved” anything for broadcast. I would reject this proposition, for reasons I have already given. A reasonable listener may well infer that the Executive Producer did approve what was broadcast.

40 However, as with imputation 7(a), the concept of humiliation is not readily derived from the broadcast.

41 I am satisfied that the broadcast is not capable of conveying imputation 7(b). Imputation 7(b) is struck out.

Imputation 7(c): that the plaintiff exploited disabled people by making fun of them on The Footy Show

42 The criticism that was made of this imputation is that, in the absence of its identifying the plaintiff as Executive Producer (as most of the other imputations do) it must be taken that the suggestion is that the plaintiff himself, directly and personally, exploited disabled people by interviewing them and then presenting them on television. I reject that submission. It is not necessary for the imputation to identify the plaintiff’s position in order to fix him with responsibility; in fact, in the broadcast he is identified as Executive Producer. It is not necessary that that identification be transported into the imputation. If the broadcast is capable of conveying the imputation that, on The Footy Show, persons of that description were made fun of, then it is capable of conveying that imputation of the plaintiff. However, as I have already explained, while there are a number of references to such people being “targeted”, there are none (in this broadcast) to such persons being made fun of or exploited. The broadcast plainly was intended to level criticism at the programme and at the plaintiff but, on its own, (unlike the first broadcast) it does so in a vague, unspecific and essentially unidentifiable way. Just what was the nature of the targeting does not emerge, even after careful reading of the transcript; much less than would have emerged to the listener who heard the broadcast.

43 Imputation 7(c) is struck out.

44 In supplementary submissions it was argued that imputations 7(a), (b), (c) and (d) do not differ in substance one from the other.

45 Given the view I have taken of those imputations in relation to capacity, it is unnecessary to deal with this argument.

Imputation 7(d): that the plaintiff is a heartless person in that as Executive Producer of The Footy Show he adopted a practice of humiliating disabled people

46 The only complaint made about imputation (d) is that it does not differ in substance from imputation (a), although it was also argued that, if the reference to “practice” depends upon the reference to 15 years, the imputation is incapable of arising. The premise is false. The plaintiff can have a “practice” as Executive Producer that does not depend on his having been in that role for 15 years. Turning to the principal complaint, the substance of each imputation is that the plaintiff had a practice of humiliating disabled people. That he is said to be “heartless” in doing so adds nothing to imputation 7(d) that is not implicit in imputation 7(a). This imputation is framed by reference to disabled persons as a class and not to Greg. The difference that can be discerned between imputation 5(a) and 5(d) is not here present. These two imputations do not differ in substance. But, in any event, since imputation 7(a) is to be struck out for other reasons, imputation 7(d) must also be struck out for the same reasons.

Imputation 7(e): that the plaintiff as Executive Producer of The Footy Show dishonestly promised to apologise to the family of a disabled person humiliated on The Footy Show by the Saturday after broadcast, when by the following Monday no apology had been made

47 Four points were made in relation to this imputation. The first is that there is nothing in the broadcast that lays the promise of an apology at the plaintiff’s door. It was “they” who were said to have given that undertaking. This followed an earlier reference to Channel Nine, but, to that point, there had been no reference either to the plaintiff or to The Footy Show. (That did come immediately after.)

48 I have concluded that there is substance in this challenge. The imputation, as framed, directly attributes the promise of an apology to the plaintiff in his capacity as Executive Producer. The broadcast cannot reasonably be interpreted as having made that charge.

49 The second challenge is that there is no explanation or reason suggested in the broadcast for the making of an apology. That is true, but it is quite irrelevant. I reject this challenge.

50 The third challenge is on stronger ground. It is that the concept of dishonesty is entirely absent from the broadcast. I agree. Dishonesty cannot reasonably be derived from what was said.

51 Finally, it was argued that the imputation misconstrues what was said, by interpreting it to mean that the promise was to make the apology, by the Saturday, when in reality (on the defendants’ alternative construction) the promise had been made on the Saturday, with no self-imposed deadline.

52 What was said was ambiguous. Either interpretation is open. That means that if this imputation were not to be struck out for other reasons, interpretation of the relevant passage would be a jury question. But, since the first and third challenges are made good, imputation 7(e) is struck out.

Imputation 7(f): that the plaintiff brought the game of rugby league into disrepute by intentionally targeting a disabled person for the purpose of humiliating him

53 At an early point in the broadcast reference was made to people who are supposed to be promoting the game (of rugby league) bringing the game into disrepute. It is not until some time afterwards that reference was made to The Footy Show or the plaintiff. The argument was that the two mentions are so widely separated that it would be unreasonable for a listener to infer that reference to bringing the game into disrepute was linked to the references to The Footy Show or to the plaintiff. As a matter of actuality, that may be the case, but, as a matter of capacity, it is not. The argument is better directed to whether, in the circumstances, the imputation in this respect is in fact conveyed.

54 It was also argued that there was nothing in the broadcast to suggest that it was the plaintiff who targeted the disabled person for the purpose of humiliating him. This is essentially the same argument as I have dealt with and rejected earlier. For the same reason I reject it again.

55 However, it follows from what I have said in relation to imputations 7(a), 7(b), 7(c) and 7(d) that this imputation is not capable of having been conveyed. Imputation 7(f) is struck out.

The third broadcast

56 The third broadcast took place one day later, 17 June, at 10.36am. Again, it is Mr Hadley who is recorded as speaking.

57 He opens by referring to:

“Those tasteless skits on The Footy Show …”

58 The substance of the broadcast is as follows:

“It says this, and I introed it by reading an article by Ray Chesterton which, to a certain extent I agree with. It’s headlined ‘Vautin’s bad call absence of malice’, and he makes the point that Paul Vautin who has a brother who suffers with down syndrome would not have deliberately, in his opinion, make fun of someone who had a disability. But he makes the point half a dozen editors and producers saw the offending tape.
Well the point I made, be it Paul Vautin, me or anyone else, that the producers of the programme when I were there were intent on getting dysfunction people, disabled people, homeless people, drunk people in a segment they called Street Talk. And based on what I saw, not on Thursday night but have seen since, it’s still their intention to do that. And what I want Channel Nine to do via their Executive Producer Gary Burns is stop doing it. … Because yesterday he spoke to The Daily Telegraph, and he said. The story said this. A church minister has come forward to reveal that he too was targeted as a so called nuffy by The Footy Show. Reverence (sic) Steve Carlisle, now from Sydney St Matthews Anglican Church in West Pymble, contacted The Daily Telegraph after we reported an allegation by 2GB broadcaster Ray Hadley. Hadley claimed that last Thursday’s embarrassing pre-recorded segment ridiculing a disabled man was often a deliberate aim of the show. Reverence (sic) Carlisle said yesterday The Telegraph told them that while he was training as minister in Dapto near Wollongong, he was interviewed at Dapto Dogs. Reverend Carlisle said that he saw many others interviewed over 3-4 hours, they looked all day and found the resident drunk, the homeless guy, another one and me. … Reverend Carlisle said the segment screened in the year 2000, was by Terry Hill who did that Street Talk segment. He said he didn’t believe that Terry was deliberately targeting nuffies but he suspected that targeting occurred in the production process.
Now I can trot out other presenters, Steve Roach included, who will back me up 100%. I’ve had conversations with them off air. That that’s what The Footy Show did. And it’s very simple. … but I would like Mr Burns as Executive Producer to say, sometime between now and Thursday, that we will not be doing what we have done previously in relation to targeting disadvantaged people for those segments. And that will be the end of the matter.”

59 The plaintiff pleads that the following four defamatory imputations are conveyed by this broadcast:

9(a) that the plaintiff as producer of The Footy Show intentionally targeted disabled people for the purpose of making fun of them on The Footy Show;

(b) that the plaintiff whilst Executive Producer of The Footy Show approved for broadcast material that to his knowledge humiliated disabled persons;

(c) that the plaintiff exploited disabled people by making fun of them on The Footy Show;

(d) that the plaintiff is a heartless person in that as Executive Producer of The Footy Show he deliberately aimed to ridicule disabled people on air.

Imputation 9(a): that the plaintiff as producer of The Footy Show intentionally targeted disabled people for the purpose of making fun of them on The Footy Show

60 Leave was sought (and, being unopposed, is granted) to amend the imputation by substituting “Executive Producer” for “producer”.

61 As with the second broadcast, having regard to the manner in which the plaintiff has chosen to plead his case, this broadcast must be treated as a discrete entity.

62 The first point made in respect of this imputation is that, in the broadcast, the plaintiff was not identified as the Executive Producer of The Footy Show, but rather as an Executive Producer of Channel Nine. Since earlier reference was made to The Footy Show I reject this. It would be open to a listener to infer that Mr Hadley intended to convey that the plaintiff was Executive Producer of The Footy Show.

63 A second point made was that there is nothing in this broadcast about the plaintiff himself (personally) intentionally targeting disabled people, as distinct from “the Show generally” doing so. I reject this. The broadcast is clearly capable of attributing to The Footy Show the intention of targeting disadvantaged persons for the purpose of ridiculing them, and it is a very short step then to attribute that to the plaintiff as its Executive Producer. Imputation 9(a) will stand.

Imputation 9(b): that the plaintiff whilst Executive Producer of The Footy Show approved for broadcast material that to his knowledge humiliated disabled persons

64 A similar argument as was put in relation to imputation 9(a) was put in relation to this imputation; and the argument that the broadcast does not suggest that the plaintiff was personally involved was also repeated.

65 Since I have rejected these arguments in relation to earlier imputations, it follows that I will reject them in relation to this imputation. Imputation 9(b) will stand.

Imputation 9(c): that the plaintiff exploited disabled people by making fun of them on The Footy Show

66 The same argument was put here as was put in relation to imputation 7(c) in relation to the second broadcast. But the third broadcast was considerably more specific than the second. It contains sufficient references to “making fun of someone” with a disability, and “ridiculing a disabled man” for this imputation to be conveyed.

Imputation 9(d): that the plaintiff is a heartless person in that as Executive Producer of The Footy Show he deliberately aimed to ridicule disabled people on air

67 Again, the argument put in relation to this imputation was a repetition of argument earlier put in relation to imputation 7(d).

68 It was also argued that imputation 9(a), (b), (c) and (d) do not differ in substance. Imputations 9(a) and (d) are in form identical to imputations 7(a) and (d) and for the reasons given earlier do not differ in substance. Imputation 9(c) does not differ in substance from imputation 9(a). It will be struck out. Imputation 9(b) is in quite a different category and will be allowed to stand.

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