Goldsworthy v Radio 2UE Sydney Pty Limited

[1999] NSWSC 291

CITATION:	Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 291
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20133/95
HEARING DATE(S):	22 March 1999
JUDGMENT DATE:	22 March 1999
PARTIES :	Allan John Goldsworthy (Plaintiff) Radio 2UE Sydney Pty Limited (ACN 000 796 887) (First Defendant) Ray Hadley (Second Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	Mr SM Littlemore QC / Mr T Molomby (Plaintiff) Mr SD Rares SC / Mr KP Smark (Defendants)
SOLICITORS:	Gells Solicitors (Plaintiff) Bush Burke & Company Solicitors (Defendants)
CATCHWORDS:	DEFAMATION - Imputations.
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
DECISION:	Imputation (b) struck out.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
22 MARCH 1999
20133/95 Allan John GOLDSWORTHY v RADIO 2UE SYDNEY PTY LIMITED & ANOR
JUDGMENT
( On admissibility of imputations (b) and (c) in Second Further Amended Statement of Claim)

1 HIS HONOUR: In these proceedings the defamatory matter is allegedly contained in remarks of the second defendant on radio station 2UE on 17 January 1995. A transcript of the relevant parts of the broadcast will be annexure A to this Judgment.
2 Objection is taken to the imputations (b) and (c) alleged in the Second Further Amended Statement of Claim which are as follows:
"(b) That decent lawyers would deplore his conduct at the committal hearing of David John Zammit for the murder of Toula Soravia and

(c) That he is unfit to be a lawyer".
In relation to imputation (b), objection is taken both on the grounds of form and capacity and in relation to imputation (c), only as to capacity.

3 In my view, objection to imputation (b) on the ground of form fails. When the broadcast is read as a whole I am satisfied that the persons whom it is alleged would deplore the conduct of the plaintiff are identified as decent lawyers in general and amounts to an allegation that decent lawyers would consider that the conduct of the plaintiff at the relevant committal hearing was deplorable.
4 The fact that it is, in one sense, put in the passive tense in my view is not fatal. However, I am satisfied that the broadcast is not capable, when read as a whole, of conveying the imputation alleged.
5 It is submitted that the passage can be read as meaning that the speaker is familiar with the standards of Messrs Conti QC and Sullivan QC and they are decent and they will appreciate the comments because they know there are persons in the profession who "do not fit the bill" or are not up to standard. But whilst I am appreciative of the principle that in considering the electronic media and particularly its transient form, the capacity of the words used to convey the imputations should be given a more generous construction: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 to 166, nevertheless when this broadcast is considered as a whole, particularly the references to the fact that Alan Sullivan QC has tried to explain why lawyers sometimes say the things they do and later that, as he points out, lawyers are paid to act in the best interests of their clients, I cannot see how the words used, when taken as a whole in their context, would be capable of conveying the imputation that "decent lawyers" would deplore the conduct of the plaintiff. Imputation (b) should therefore be struck out.
6 As to imputation (c), a number of similar considerations apply but it seems to me that, having regard to the more generous construction used in the electronic media to which I have referred, the context of the matter complained of as a whole would be capable of conveying the imputation that the plaintiff is unfit to be a lawyer, and I decline to strike out imputation (c).

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