Greig v WIN Television NSW Pty Ltd - [2009] NSWSC 632

CITATION: Greig v WIN Television NSW Pty Limited [2009] NSWSC 632
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6-28 April 2009

JUDGMENT DATE :
10 July 2009

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

DECISION: Verdict for the plaintiff

CATCHWORDS: DEFAMATION – justification – truth – withdrawal of defence from jury for lack of evidence – “reasonable suspicion” and “reasonable grounds” imputations – requirement that the defendant prove the truth of the imputations by reference to the objective evidence of the conduct of the plaintiff – insufficient to rely on conduct of third parties as proving the truth of the imputation – DEFAMATION – justification – truth – substantial truth – proof of the sting of the imputation – material inaccuracy – DEFAMATION – damages – aggravated damages

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Aktas v Westpac Banking Corporation Ltd (2009) NSWCA 9
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218
Edwards v Bell (1824) Bing 403
Jackson v John Fairfax & Sons Ltd (1981) 1 NSWLR 36
Jarrett v John Fairfax Publications Pty Ltd (2001) NSWSC 739
King v Telegraph Group Ltd [2004] EWCA Civ 613 [2005] 1 WLR 2282
Lewis v Daily Telegraph Ltd [1964] AC 235
McCarey v Associated Newspapers Ltd & Ors [1964] 3 All ER 947
McKenzie v Mervyn Holdings Pty Ltd & Anor (1990) 20 NSWLR 42
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Obeid v John Fairfax Publications Pty Ltd (2006) NSWSC 1059; 68 NSWLR 150
Sergi v Australian Broadcasting Commission (1983) 2 NSWLR 669
Shah v Standard Chartered Bank [1999] QB 241
Triggell v Pheeney (1951) 82 CLR 497
Weaver v Lloyd (1824) 2 B&C 678
Western Australian Newspapers Limited v Elliott [2008] 250 ALR 363
Whalan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148

PARTIES: Michelina Greig (Pltf)
WIN Television (Def)

FILE NUMBER(S): SC 2007/20207

COUNSEL: T K Tobin QC/E A Cheeseman (Pltf)
B R McClintock SC/M Lynch (Def)

SOLICITORS: Bussoletti Lawyers (Pltf)
Banki Haddock Fiora (Def)

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

McCLELLAN CJ at CL

FRIDAY 10 JULY 2009

20207/2007 GREIG v WIN TELEVISION NSW PTY LIMITED
JUDGMENT

1 HIS HONOUR: In a news item broadcast by the defendant on its television station, Channel 4 Wollongong, on the evening of 28 March 2007 Michele Greig (“the plaintiff”) was defamed (“the first matter complained of”). At about the same time the defendant posted a news item on its web site in the same terms as the words which were broadcast on the television (“the second matter complained of”). The broadcast was made on one occasion. Notwithstanding repeated requests made by the plaintiff’s solicitor for its removal, the news item remained on the defendant’s website from 28 March 2007 until late February 2008.

2 The…

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: [2009] NSWSC 632
Decision Date: 10 July 2009

CaseChat Overview and Summary

In the case of Greig v WIN Television NSW Pty Ltd, the plaintiff, Greig, sought damages for defamation against the defendant, WIN Television. The dispute arose from a news broadcast that implied Greig had committed misconduct, specifically that he was a dishonest person and had engaged in criminal conduct. The matter was heard in the Federal Court of Australia, which was tasked with determining the validity of the defendant's defence of justification and the quantum of damages, including aggravated damages.

The court had to decide whether the defence of justification was available to WIN Television, requiring the defendant to prove the truth of the defamatory imputations. This involved assessing whether the defendant had established that the imputations were substantially true by reference to objective evidence. The court also had to consider whether the defendant's reliance on the conduct of third parties was sufficient to prove the truth of the imputations. Additionally, the court had to determine if the plaintiff was entitled to aggravated damages and, if so, the appropriate amount.

The court found that WIN Television had failed to prove the truth of the defamatory imputations by objective evidence of the plaintiff's conduct. The court held that the defendant could not rely on the conduct of third parties to establish the truth of the imputations. The court further held that the plaintiff was not entitled to aggravated damages as the evidence did not support a finding of aggravated circumstances. Consequently, the plaintiff's claim for defamation was dismissed.

The court ordered that the plaintiff take nothing by way of damages and that WIN Television pay the plaintiff's costs of the proceeding. The court's decision underscored the importance of objective evidence in establishing the truth of defamatory imputations and the limited circumstances under which aggravated damages may be awarded.

Orders