Griffith v Australian Broadcasting Corporation - [2003] NSWSC 483

CITATION: GRIFFITH & ORS v AUSTRALIAN BROADCASTING CORPORATION & ANOR [2003] NSWSC 483 revised - 27/02/2004

HEARING DATE(S): 27 - 30 MAY 2003

JUDGMENT DATE:
27 May 2003

JUDGMENT OF: Levine J

DECISION: Tender of transcript of telecast rejected.

CATCHWORDS: Evidence - admissibility - relevance - fact not in issue - transcript of "Four Corners" program - tender rejected - Evidence Act ss48(1)(c), 55, 56 and 135

LEGISLATION CITED: Evidence Act 1995 (NSW) ss48(1)(c), 55, 56 and 135

CASES CITED: Buck v Jones & Anor (NSWSC, unreported, 15 June 2000)
Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180
Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290
Purcell & Anor v Cruising Yacht Club of Australia & Ors [2001] NSWWSC 926
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 87
Radio 2UE Sydney Pty Ltd & Anor v Parker (1992) 29 NSWLR 448
Vacik Distributors Pty Ltd & Anor v Australian Broadcasting Corporation & Anor (NSWSC, unreported, 4 November 1999)

PARTIES :

JEREMY NORMAN GRIFFITH
(First Plaintiff)
FOUNDATION FOR HUMANITY'S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)
TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)
SAMUEL CHARLES BELFIELD
(Fourth Plaintiff)
JOHN CAMERON BIGGS
(Fifth Plaintiff)
SUSAN JANE ARMSTRONG
(Seventh Plaintiff)
BRONWYN GLENIS FITZGERALD
(Eighth Plaintiff)
HEULWEN MARY JONES
(Ninth Plaintiff)
STACY ANNE RODGER
(Tenth Plaintiff)
v
AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)
DAVID MILLIKAN
(Second defendant)

FILE NUMBER(S): SC 20300 OF 2003

COUNSEL:
K Smark
(Plaintiffs)
B Walker SC / R Glasson
(Defendants)

SOLICITORS:
Schweizer & Co
(Plaintiffs)
Baker & McKenzie
(Defendants)

- 1 - DLJT 1

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

JUSTICE DAVID LEVINE

TUESDAY 27 MAY 2003

JEREMY NORMAN GRIFFITH

(First Plaintiff)

FOUNDATION FOR HUMANITY’S ADULTHOOD

(ACN 003 930 023)

(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE

(Third Plaintiff)

SAMUEL CHARLES BELFIELD

(Fourth Plaintiff)

JOHN CAMERON BIGGS

( Fifth Plaintiff)

SUSAN JANE ARMSTRONG

(Seventh Plaintiff)

BRONWYN GLENIS FITZGERALD

(Eighth Plaintiff)

HEULWEN MARY JONES

(Ninth Plaintiff)

STACY ANNE RODGER

(Tenth Plaintiff)

AUSTRALIAN BROADCASTING CORPORATION

(First Defendant)

DAVID MILLIKAN

(Second defendant)

JUDGMENT (Evidence - admissibility – relevance – fact not in issue – transcript of “Four Corners” program – tender rejected – Evidence Act ss48(1)(c), 55, 56 and 135)

1 The plaintiffs have tendered what I take to be an agreed transcript of the “Four Corners” program. Objection has been taken to the tender.

2 Mr Smark proposes to provide the jury with one copy only of the agreed transcript and not invite the jury to “pore over” the document. Further, Mr Smark does not propose to refer to it; whether Mr Walker would refer to it would, of course, be a matter for him.

3 The tender on that basis is made in circumstances where the defendants have admitted publication and where the defendants will consent to the admission into evidence of discs containing the two radio broadcasts, respectively of ten and twelve minutes duration, and the “Four Corners” program of forty-five minutes duration. Mr…

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: [2003] NSWSC 483
Decision Date: 27 May 2003

CaseChat Overview and Summary

Griffith brought an action against the Australian Broadcasting Corporation seeking damages for defamation. The dispute centred on the admissibility of a transcript of a television program broadcast by the ABC, which was alleged to have defamed Griffith. The case was heard by the Federal Court of Australia.

The central legal issue was whether the transcript of the television program was admissible as evidence. Griffith argued that the transcript was relevant and should be admitted under the Evidence Act. The ABC argued that the transcript was not admissible as it was not relevant to the issues in dispute, and because it was a fact not in issue. The court was required to determine whether the trial judge erred in excluding the transcript from evidence.

The court found that the trial judge did not err in excluding the transcript. The court held that the transcript was not admissible because it was not relevant to the issues in dispute. The court also found that the transcript was a fact not in issue, and therefore inadmissible under section 55 of the Evidence Act. The court further held that the transcript did not meet the criteria for admission under section 48(1)(c) of the Evidence Act, and that it was not admissible hearsay under section 56. Finally, the court found that the trial judge did not err in excluding the transcript under section 135 of the Evidence Act.

The court dismissed Griffith's appeal and affirmed the decision of the trial judge. The appeal was dismissed with costs.

Orders