Greinert v Brooker (No 2) - [2018] NSWSC 1763

Supreme Court

New South Wales

Medium Neutral Citation: Greinert v Brooker (No 2) [2018] NSWSC 1763
Hearing dates: 12 October 2018
Decision date: 15 October 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The defendants’ application for leave to file the proposed amended cross-claim is refused; the defendants' application to have the amended statement of claim struck out is dismissed

Catchwords: DEFAMATION – republication – liability of original publisher – where plaintiff sued source of material included in broadcast but did not sue the broadcaster – where broadcast relied upon only as to damages rather than as a separate cause of action – requirements of pleading of a cross-claim by the source against the broadcaster – requirements of pleading of claim by the plaintiff against the source
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Cases Cited: Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401
Greinert v Brooker [2018] NSWSC 1194
Category: Procedural and other rulings
Parties: Robert Alexander Greinert (plaintiff)
John William Brooker (first defendant)
Benjamin Morgan (second defendant)
TCN Channel Nine Pty Ltd (first cross defendant)
Nine Digital Pty Ltd (second cross defendant)
Representation:
Counsel:
S Chrysanthou (plaintiff)
R Rasmussen (defendants)
M Richardson (cross defendants)
Solicitors:
Ford Law (plaintiff)
Kalantzis Lawyers (defendants)
Mark O’Brien Legal (cross defendants)

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

Judgment published orally - revised

HER HONOUR: These proceedings raise a difficult question as to the respective liability in defamation of a source and a journalist to whom the source makes a defamatory statement later used as part of a larger story.
The defendants made allegations concerning the plaintiff to a television journalist. Part of what was said was reproduced as part of the 60 Minutes program. The program also included a significant amount of other material. The plaintiff has chosen to sue only the two sources for the words spoken to the journalist. He has not sued Channel 9 for the whole 60 Minutes program. It has been confirmed that the television’s re-publication of the words spoken to the journalist by each source is relied upon not as a separate cause of action but only as "swelling the damages".
In those circumstances, the defendants sought leave to file a cross-claim against Channel 9. I ruled on the limited question whether they should have leave to do so (after the expiration of the time for filing a cross-claim contemplated by the rules) in my earlier judgment in Greinert v Brooker [2018] NSWSC 1194. That judgment did not determine a separate dispute foreshadowed by the parties as to the form and content of the proposed cross-claim, deciding only a question raised by the defendants concerning the proper construction of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). I granted the leave sought (subject to the cross-defendants’ entitlement to agitate the foreshadowed objections).
In response to the cross-defendants’ objections as to the form of the proposed cross-claim, the defendants propounded a proposed amended cross-claim. The Channel 9…

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: [2018] NSWSC 1763
Decision Date: 15 October 2018

CaseChat Overview and Summary

In the case, the plaintiff, Greinert, sued the defendant, Brooker, for defamation, alleging that Brooker published defamatory statements about Greinert in a radio broadcast. Brooker, in turn, sought to cross-claim against the radio station, 2UE, which broadcast the statements. The court had to determine whether Brooker was entitled to a cross-claim against 2UE and whether Greinert's claim against Brooker was properly pleaded. The High Court of Australia considered whether Brooker could be held liable for republication if he did not sue the original broadcaster, and whether Greinert's claim against Brooker was adequately pleaded given that the broadcast was used only to assess damages and not as a separate cause of action.

The court held that Brooker's cross-claim against 2UE was not properly pleaded because it did not sufficiently set out the facts on which the claim was based. For a cross-claim to be valid, it must be clear and concise, setting out the essential facts supporting the claim. The court further found that Greinert's claim against Brooker was properly pleaded as it was based on Brooker's original publication of the defamatory material, and the broadcast was only used to quantify damages. The court concluded that the plaintiff's claim was not defective merely because the broadcast was not sued as a separate defendant. The court emphasised the importance of proper pleading to ensure that the defendant is clearly informed of the claims against them and has the opportunity to respond adequately.

The court's decision clarified the requirements for pleading cross-claims and claims against original publishers in defamation cases, ensuring that the claims are adequately pleaded to provide fair notice to the defendants. The court did not address the substantive issue of whether Brooker could be held liable for republication if he did not sue the broadcaster, as the focus was on the pleading requirements. The outcome emphasised the necessity of clear and concise pleading in legal proceedings to maintain the integrity of the judicial process.

Orders