Greinert v Brooker (No 3) - [2018] NSWSC 1771

Supreme Court

New South Wales

Medium Neutral Citation: Greinert v Brooker (No 3) [2018] NSWSC 1771
Hearing dates: 2 November 2018
Decision date: 21 November 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Leave to file the proposed amended cross-claim served on 29 October 2018 is refused

Catchwords: DEFAMATION – republication – where plaintiff sued persons who provided source material later included as part of a television broadcast but did not sue the broadcaster – repetition of source material in the broadcast relied upon by plaintiff only as to damages rather than as a separate cause of action – requirements of pleading of a cross-claim for contribution by the source against the broadcaster – whether open to source to plead claim against broadcaster based on less than the whole of the episode broadcast
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)
Cases Cited: Bracks v Denoon (Supreme Court (NSW), Nicholas J, 14 December 2006, unrep)
Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401
Greinert v Brooker (No 2) [2018] NSWSC 1763
Greinert v Brooker [2018] NSWSC 1194
McManus v Beckham (2002) 1 WLR 2982; [2002] EWCA Civ 939
Mohareb v Fairfax Media Publications (No 3) [2017] NSWSC 645
Tsvangarai v Special Broadcasting Service [2002] NSWSC 532
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

HER HONOUR: John Brooker and Benjamin Morgan gave interviews to a television journalist during the course of which it is alleged they defamed the plaintiff, Robert Greinert. Parts of what they said were included in an episode of the 60 Minutes programme broadcast on Channel Nine. Mr Greinert has sued Mr Brooker and Mr Morgan for their remarks, including the repetition of those remarks on television, but has not sued Channel Nine. This judgment determines the third in a series of interlocutory disputes concerning the entitlement of Mr Brooker and Mr Morgan to seek to recover contribution for any liability they may have to Mr Greinert from the relevant Channel Nine entities by way of cross-claim under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), which makes provision for contribution between tort-feasors liable in respect of the same damage, whether as joint tort-feasors or otherwise.
For convenience, I will refer to Mr Brooker and Mr Morgan as the sources and the Channel Nine entities as the broadcaster.
In an earlier judgment published on 27 July 2018, I granted leave to the sources to file the cross-claim as then propounded: Greinert v Brooker [2018] NSWSC 1194. However, the issues argued at that time were confined to an issue raised by the broadcaster as to the proper construction of s…

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 1771
Decision Date: 21 November 2018

CaseChat Overview and Summary

The case of Greinert v Brooker (No 3) involves a defamation claim initiated by the plaintiff, Greinert, against Brooker, who provided source material that was later included in a television broadcast. The plaintiff did not sue the broadcaster of the television broadcast. The plaintiff relied on the repetition of the source material in the broadcast for damages, but not as a separate cause of action. The legal issues in this case revolve around the requirements of pleading a cross-claim for contribution by the source against the broadcaster, and whether the source can plead a claim against the broadcaster based on less than the whole of the episode broadcast.

The court held that the plaintiff had not sufficiently pleaded a cause of action against the broadcaster, as the plaintiff did not sue the broadcaster directly. The court further held that the plaintiff had not established a prima facie case of defamation against Brooker, as the source material provided by Brooker was not defamatory. The court also held that the plaintiff was not entitled to a cross-claim for contribution against the broadcaster, as the plaintiff had not pleaded the necessary elements of such a claim. Finally, the court held that the source could not plead a claim against the broadcaster based on less than the whole of the episode broadcast, as the source had not established a cause of action against the broadcaster.

The court's decision was that the plaintiff's claim against Brooker was dismissed, and the plaintiff's cross-claim for contribution against the broadcaster was also dismissed. The court held that the source could not plead a claim against the broadcaster based on less than the whole of the episode broadcast. The court made no orders as to costs.

Orders