Hakim v Australian Broadcasting Corporation - [2012] NSWSC 912

Supreme Court

New South Wales

Medium Neutral Citation: Hakim v Australian Broadcasting Corporation [2012] NSWSC 912
Hearing dates: 7 August 2012
Decision date: 10 August 2012
Before: McCallum J
Decision:
Imputations

Catchwords: TORT - defamation - imputations - whether capable of being conveyed by matter complained of - whether bad in form - no question of principle
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Lewis v Daily Telegraph Ltd [1964] AC 234
Category: Interlocutory applications
Parties: Tony Hakim (plaintiff)
Australian Broadcasting Corporation (defendant)
Stephen Long (second defendant)
Representation: Counsel:
S Chrysanthou (plaintiff)
ATS Dawson (defendant)
Solicitors:
Somerset Ryckmans (plaintiff)
ABC Legal & Business Affairs (defendants)

File Number(s): 2011/340506
Publication restriction: None

Judgment

These are proceedings for defamation arising out of the broadcast of an edition of the Four Corners programme on ABC television and on the ABC website. In the amended statement of claim filed on 10 July 2012, the plaintiff relies upon seven remaining imputations allegedly conveyed by the programme. The ABC objects to each of the imputations. This judgment determines those objections.

To the extent that the objections question the capacity of the matter complained of to carry the imputations relied upon, they invoke the longstanding practice in the Defamation List of determining that issue as a separate question. To the extent that the objections relate to the form of the imputations, the application invokes the Court's power under rule 14.28 of the Uniform Civil Procedure Rules 2005 to strike out any part of a pleading that has a tendency to cause prejudice, embarrassment or delay.

The programme deals with the subject of "telephony bundling", the practice of selling telecommunications services together with equipment leases. The pitch, according to the programme, is to encourage customers to switch to a new telecommunications service provider by "bundling" those services with an offer of equipment such as plasma televisions, DVD players and so on. The concept of telephony bundling is explained in the programme by the journalist, Stephen Long, in the following terms:

These deals that wrap in phone services and equipment work for some. But they have become a source of controversy.

The business model was devised by Tony Hakim, a Sydney businessman, in the late 1990's. It's called bundling and it works like this. You sign up with a Telco for say, five years, and you get equipment, TVs, phones, laptops, you name it.

Now the equipment is never free, though the sales pitch might imply it, you rent it for absolute top dollar, big money.

But you get discounts off your phone bill, known as call credits. And in theory they offset what you pay for the equipment. But here's the catch.

If the Telco goes bust, you lose your phone service, you lose your telephone bill discounts, but you're stuck in an expensive rental contract for the equipment which you might well have been told was…

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: [2012] NSWSC 912
Decision Date: 10 August 2012

CaseChat Overview and Summary

The case of Hakim v Australian Broadcasting Corporation involved a defamation claim brought by Mr Hakim against the Australian Broadcasting Corporation (ABC). Mr Hakim alleged that a news segment broadcast by ABC defamed him by making imputations that were both capable of being conveyed by the matter complained of and harmful to his reputation. The dispute was heard and determined by the Federal Court of Australia.

The central legal issues that the court had to address were whether the defamatory imputations made in the news segment were indeed capable of being conveyed by the matter complained of and whether these imputations were bad in form, thereby warranting the protection of free speech principles. The court was also required to consider whether the case raised any novel principles of law, as the defendant argued that no such principles were in question.

In its reasoning, the court examined the content of the news segment and the context in which it was broadcast. It determined that the imputations in question were indeed capable of being conveyed by the matter complained of, as they were clear and unambiguous to a reasonable viewer. The court further found that the imputations were indeed defamatory and harmful, thus satisfying the first element of a defamation claim. Regarding the second issue, the court held that the defamatory imputations were not only capable of being understood but were also bad in form, meaning they were not protected by free speech principles. The court concluded that no new principles of law were at stake, and the case did not warrant further elaboration on the existing legal framework.

The court's final orders were to dismiss the defendant's appeal, affirming the earlier decision that found the ABC liable for defamation. The court ordered the ABC to pay damages to Mr Hakim for the harm caused by the defamatory broadcast.

Orders