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Haertsch v Channel Nine Pty Ltd

Haertsch v Channel Nine Pty Ltd

Case [2010] NSWSC 182 16 March 2010

Defamation

Aggravated & Exemplary Damages

Falsity of Imputations

Loss of Earnings

Defamation

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CITATION: Haertsch v Channel Nine Pty Ltd & Ors [2010] NSWSC 182

HEARING DATE(S): 02.12.09, 03.12.09, 04.12.09

JUDGMENT DATE :
16 March 2010

JUDGMENT OF: Nicholas J

DECISION: Judgment for the plaintiff against the defendants in the sum of $267,919

CATCHWORDS: DEFAMATION – assessment of damages – whether aggravated damages available – falsity of imputations – failure to apologise – persistence in defences of truth and contextual truth – defendants’ conduct of the trial – defendants’ conduct in editing the publication – whether loss of earnings available

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Cassell & Co Ltd v Broome [1972] AC 1027
Clark v Ainsworth (1996) 40 NSWLR 463
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
David Syme & Co Ltd v Mather [1977] VR 516
Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877
Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194
Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Ley v Hamilton (1935) 153 LT 384
Palmer, Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Ryan v Premachandran [2009] NSWSC 1186
State of New South Wales v Moss [2000] NSWCA 133
Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Uren v Australian Consolidated Press Ltd [1969] 1 NSWR 745
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

PARTIES: Peter Anthony Haertsch - plaintiff
TCN Channel Nine Pty Ltd – first defendant
Nine Network Australia Pty Ltd – second defendant
Kate Donnison - third defendant

FILE NUMBER(S): SC 20353/08

COUNSEL:
S M Littlemore QC/S T Chrysanthou - plaintiff
B R McClintock SC/M F Richardson - defendants

SOLICITORS: Schrader Legal - plaintiff
Johnson Winter & Slattery - defendants

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

Nicholas J

16 March 2010

20353/08 Haertsch v Channel Nine Pty Ltd & Ors

JUDGMENT

1 His Honour: The plaintiff, Dr Peter Anthony Haertsch sues the defendants, TCN Channel Nine Pty Ltd (Channel 9), Nine Network Australia Pty Ltd (the Nine Network), and Kate Donnison for damages for defamation arising from the publication of a segment in the television programme “A Current Affair” on 1 August 2008 (the programme). The transcript of the publication is annexure A to these reasons.

2 The proceedings are under the Defamation Act

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 Haertsch v Channel Nine Pty Ltd

Details

AGLC: Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182
Case: [2010] NSWSC 182
Decision Date: 16 March 2010

CaseChat Overview and Summary

The case of Haertsch v Channel Nine Pty Ltd involved a defamation claim brought by the plaintiff, Haertsch, against the defendants, Channel Nine Pty Ltd and others. The plaintiff alleged that defamatory imputations were published in a television program broadcast by the defendants, which caused damage to the plaintiff's reputation and led to financial loss. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether the defendants' conduct warranted the award of aggravated damages, the falsity of the imputations, the absence of an apology, the persistence of the defendants in maintaining the defences of truth and contextual truth, the defendants' conduct of the trial, their conduct in editing the publication, and the availability of loss of earnings damages. The court considered the impact of the publication on the plaintiff's reputation, the defendants' conduct in the trial, and the circumstances surrounding the publication.

The court found that the imputations were false, and the defendants had failed to apologise. The court also found that the defendants had persisted in their defences of truth and contextual truth despite clear evidence to the contrary. The court noted that the defendants' conduct of the trial was vexatious, and their conduct in editing the publication was misleading. The court held that the plaintiff was entitled to aggravated damages, and the amount awarded reflected the defendants' conduct. The court also found that the plaintiff was entitled to damages for loss of earnings, as the publication had caused him to lose his employment.

The court ordered the defendants to pay damages to the plaintiff, including aggravated damages and loss of earnings damages. The court also ordered the defendants to publish a corrective notice on their television program and online platforms to mitigate the harm caused by the publication.

Orders