Greinert v Brooker - [2018] NSWSC 1194

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Greinert v Brooker [2018] NSWSC 1194
Hearing dates: 17 July 2018
Decision date: 27 July 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Leave granted to the defendants to file a cross claim in the form provided at tab 4 of the Court Book; costs reserved.

Catchwords:
DEFAMATION – publication and republication – where material provided to journalist by sources republished on national television – plaintiff suing the sources only – application by sources for leave to file cross-claim seeking contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – whether fairly arguable that the publisher of the television broadcast is a concurrent tortfeasor liable in respect of the same damage – consideration of principles stated by the Court of Appeal in Bracks v Smyth-Kirk
PROCEDURE – application for leave to file cross-claim late – consideration of discretionary factors
Legislation Cited: Defamation Act 2005 (NSW), ss 26, 30
Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c)
Uniform Civil Procedure Rules 2005 (NSW), r 9.1(1)(a)
Cases Cited: Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401
Bracks v Smyth-Kirk [2008] NSWSC 930
Category: Procedural and other rulings
Parties: Robert Alexander Greinert (plaintiff)
John William Brooker (first defendant)
Benjamin Morgan (second defendant)
TCN Channel Nine Pty Ltd,
Nine Network Australia Pty Ltd and
Nine Digital Pty Ltd (proposed cross respondents)
Representation:
Counsel:
K Smark SC (plaintiff)
R Rasmussen (defendants)
M Richardson (proposed cross respondents)
Solicitors:
Ford Law (plaintiff)
Kalantzis Lawyers (defendants)

File Number(s): 2017/108676
Publication restriction: None

Judgment (PUBLISHED ORALLY – REVISED)

HER HONOUR: These are proceedings for defamation brought by Mr Robert Greinert. The proceedings concern a story broadcast on the 60 Minutes programme on Channel 9 about the retrieval of old war planes from the jungles of Papua New Guinea. The broadcast plainly conveyed defamatory imputations concerning Mr Greinert. It was introduced by the journalist with the following words:

“In the rugged and spectacular frontier of Papua New Guinea, there’s an outrageous treasure hunt happening. Old War planes - bombers and fighters that once battled to save us against the advancing Japanese during World War II – are being plundered from the jungle. The historic wrecks are in demand by collectors and museums around the world. Some are worth millions of dollars. The problem is the warbirds belong to the government and people of PNG, although that seems to be no deterrent to Australian Robert Greinert.”

However, the plaintiff has elected, as he is perfectly entitled to do, not to sue the Channel 9 entities that publish 60 Minutes but to confine his case to an action against two men who agreed to be interviewed by Channel 9 for the purpose of the programme, Mr Brooker and Mr Morgan.
The amended statement of claim filed on 7 July 2017 makes plain that the broadcast of the 60 Minutes programme that included words spoken to the journalist by each of those two men is not…

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.

Continue reading Greinert v Brooker

Details

AGLC: Greinert v Brooker [2018] NSWSC 1194
Case: [2018] NSWSC 1194
Decision Date: 27 July 2018

CaseChat Overview and Summary

The case of Greinert v Brooker involved a defamation claim brought by the plaintiff against two individuals who provided information to a journalist. The plaintiff alleged that the information was republished on national television, causing harm to his reputation. The defendants applied for leave to file a cross-claim against the publisher of the television broadcast, seeking contribution under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The application was made late, and the court was required to consider whether it was fairly arguable that the publisher was a concurrent tortfeasor liable in respect of the same damage. The court also had to consider the discretionary factors relevant to granting leave to file a cross-claim late.

The primary legal issues before the court were whether the publisher of the television broadcast was a concurrent tortfeasor and whether the application for leave to file the cross-claim was made within a reasonable time. The court considered the principles outlined in Bracks v Smyth-Kirk, which set out the requirements for a party to be considered a concurrent tortfeasor in a defamation case. The court also considered the discretionary factors relevant to granting leave to file a cross-claim late, such as the explanation for the delay, the likelihood of success on the cross-claim, and the potential prejudice to other parties.

The court found that it was fairly arguable that the publisher was a concurrent tortfeasor and that the application for leave to file the cross-claim was made within a reasonable time. The court noted that the publisher had control over the content of the broadcast and had the ability to prevent the republication of the defamatory material. The court also found that the explanation for the delay in filing the cross-claim was reasonable, and that there was a likelihood of success on the cross-claim. The court granted leave to file the cross-claim, allowing the defendants to seek contribution from the publisher of the television broadcast.

The court ordered that the defendants be granted leave to file a cross-claim against the publisher of the television broadcast, seeking contribution under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The court noted that the publisher was a concurrent tortfeasor and that the application for leave to file the cross-claim was made within a reasonable time. The court also noted that there was a likelihood of success on the cross-claim and that the explanation for the delay in filing the cross-claim was reasonable. The court ordered that the defendants file the cross-claim within 28 days of the judgment.

Orders