Gould v TCN Channel 9 - [2000] NSWSC 707

CITATION: Gould v TCN Channel 9 & Ors [2000] NSWSC 707

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20372/99

HEARING DATE(S): 18/07/00

JUDGMENT DATE: 18 July 2000

PARTIES :

Stephen George Gould (Pl)
TCN Channel Nine Pty Ltd (1 Def)
Jessica Block (2 Def)
Emma Alberici (3 Def)

JUDGMENT OF: Kirby J

COUNSEL : S G Gould (Pl in Person)
J Sleight (Defs)

SOLICITORS: S G Gould (Pl in Person)
Gilbert & Tobin (Defs)

CATCHWORDS: Strike out application - Cause of action in negligence as an alternative to defamation

LEGISLATION CITED: Partnership (Limited Partnership/s) Amendment Act 1991
Supreme Court Procedure - Pt 15; Pt8 r3
Partnership Act 1982 - s20

CASES CITED: Commissioner of Taxation v Everitt (1980) 143 CLR 440
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Bell-Booth Group Limited v Attorney-General (1989) 3 NZLR 148

DECISION: Ref para 31

THE SUPREME COURT Extempore Revised
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Tuesday 18 July 2000

20372/99 - STEVEN GEORGE GOULD v TCN CHANNEL NINE & ORS
JUDGMENT

1   HIS HONOUR: On 6 August 1999 Steven George Gould commenced an action by statement of claim against three defendants. The first defendant was TCN Channel Nine Pty Limited; the second, Jessica Block, who is described as corporate counsel of Channel Nine; and the third defendant, Emma Alberici, described as a journalist and producer of “A Current Affair”, being a programme screened on Channel 9.
2 The statement of claim alleged, in paragraph 1, that the plaintiff was the managing partner of Halisa-NSW Partnership, which was described as a limited partnership registered under the Partnership (Limited Partnership) Amendment Act 1991. The statement of claim also recited that Halisa was itself involved in a business venture known as OICY2K Resource Asset Management Program (OICY2KRAMP), along with five other partners.
3   The pleading alleged that the television company was preparing a program on the Y2K issue. In the course of that preparation it dealt with Mr Gould. Certain agreements were reached. It is said that the defendants failed to honour these agreements by awaiting the response of Mr Gould in respect of serious allegations which it intended to include in the proposed program. The statement of claim further recited that a duty of care was owed to Halisa-NSW Partnership, and OICY2KRAMP, for reasons which were then set out.
4   Broadly, the reasons were that if they failed to develop certain management systems, and exercise certain skills, in the case of a lawyer, and honour certain journalistic codes, in the case of the third defendant, then the publication of untruths and misrepresentations would follow, and cause damage.
5   The defendants filed a notice of motion. It sought to have the statement of claim struck out on the ground that it disclosed no reasonable cause of action, and was an abuse of process of this court.
6   The matter came before his Honour Justice Abadee on 22 November 1999. His Honour, after argument, ultimately permitted the plaintiff to replead…

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: [2000] NSWSC 707
Decision Date: 18 July 2000

CaseChat Overview and Summary

The case of Gould versus TCN Channel 9 was heard in the Supreme Court of New South Wales. The plaintiff, Gould, sought to pursue a cause of action in negligence against the defendant, TCN Channel 9, in addition to defamation. Gould alleged that the defendant's broadcast of a news segment had caused damage to his reputation and standing within the community. The defendant argued that the plaintiff's claim for negligence should be struck out, as it was an alternative to the defamation claim, which was already being pursued.

The primary legal issue before the court was whether the plaintiff was entitled to pursue a cause of action in negligence alongside the defamation claim. The court had to consider the principles of pleading and whether an alternative cause of action in negligence could be validly pursued when a defamation claim was already in progress. The court needed to determine if the plaintiff's allegations could reasonably be supported by a claim in negligence and whether such a claim was distinct from the defamation claim.

The court held that the plaintiff was not precluded from pursuing a cause of action in negligence as an alternative to the defamation claim. The court found that the allegations made by the plaintiff were sufficient to support a claim in negligence and that the two causes of action were distinct and could be pursued concurrently. The court determined that the plaintiff's claim in negligence was not an alternative cause of action that should be struck out, as it did not overlap with the defamation claim. The court allowed the plaintiff to proceed with both causes of action, providing the plaintiff with the opportunity to seek remedies for both defamation and negligence.

No specific final orders were mentioned in the text, but it is likely that the court would have ordered that the plaintiff's claim in negligence be allowed to proceed alongside the defamation claim, subject to the usual rules of pleading and the applicable limitations.

Orders