Hall v Swan

Case [2009] NSWCA 371

New South Wales


Court of Appeal


CITATION: Hall v Swan & Anor [2009] NSWCA 371
HEARING DATE(S): 8 October 2009
 
JUDGMENT DATE: 
26 November 2009
JUDGMENT OF: Tobias JA at 1; Bergin CJ in Eq at 2; Sackville AJA at 125
DECISION: 1. Appeal allowed.
2. Set aside the orders of Rothman J made on 10 February 2009 and in their place order that verdicts be entered that the broadcasts conveyed each of imputations (a) to (g), (i), (k) and (l) and that each of those imputations is defamatory.
3. Appeal in relation to imputations (h) and (j) dismissed.
4. The respondents are to pay the appellant’s costs of the
s 7A trial and of the appeal.
CATCHWORDS: DEFAMATION - JURY VERDICTS - Whether verdicts in trial pursuant to s 7A of the Defamation Act 1974 (repealed) were unreasonable - Whether counsel's address misled the jury - Whether Court should grant relief entering verdicts in appellant's favour when jury has not considered the question of whether imputations are defamatory
LEGISLATION CITED: Defamation Act 1974 (NSW) (repealed)
Supreme Court Act 1970 (NSW)
CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Beran v John Fairfax Publications Pty Limited [2004] NSWCA 107
Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346
Bromley v Tonkin (1987) 11 NSWLR 211
Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201
David Syme & Co v Canavan (1918) 25 CLR 234
General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Gorman v Barber (2004) 61 NSWLR 543
Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291
Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213
Ward v James [1966] 1 QB 273
PARTIES: Bruce Hall (Appellant)
Norman Swan (First Respondent)
Australian Broadcasting Corporation (Second Respondent)
FILE NUMBER(S): CA 40060 of 2009
COUNSEL: R G McHugh SC/M Richardson (Appellant)
B W Walker SC/A T S Dawson (Respondents)
SOLICITORS: Banki Haddock Fiora (Appellant)
Australian Broadcasting Corporation Legal Services (Respondents)
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): 20074 of 2008
LOWER COURT JUDICIAL OFFICER: Rothman J



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                          40060 of 2009

                          TOBIAS JA
                          BERGIN CJ in Eq
                          SACKVILLE AJA

                          26 November 2009
Bruce HALL v Norman SWAN & ANOR
Judgment

1 TOBIAS JA: I agree with Bergin CJ in Eq.

The appellant, Bruce Hall, appeals from a jury’s verdicts at trial pursuant to s 7A of the Defamation Act 1974 (NSW) (now repealed) presided over by Rothman J (the trial judge), that none of the twelve pleaded imputations was conveyed by broadcasts of the program, The Science Show, presented by the first respondent, Dr Norman Swan (Dr Swan), and broadcast on the network of the second respondent, Australian…

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AGLC
Hall v Swan [2009] NSWCA 371
Case
[2009] NSWCA 371
Decision Date

CaseChat Overview and Summary

The appeal in *Hall v Swan* concerned a defamation trial conducted pursuant to section 7A of the *Defamation Act 1974* (repealed). The appellant, Mr. Hall, alleged that certain broadcasts by the respondents conveyed defamatory imputations about him. The jury at the trial had returned verdicts that did not find all the alleged imputations to be defamatory. Mr. Hall appealed these verdicts, arguing they were unreasonable and that the jury had been misled by counsel's address.

The central legal issues before the Court of Appeal were whether the jury's verdicts were unreasonable, whether counsel's address had prejudiced the jury's deliberations, and whether the Court should intervene to enter verdicts in the appellant's favour, particularly where the jury had not definitively considered the defamatory nature of certain imputations.

The Court of Appeal found that the jury's verdicts were indeed unreasonable in relation to several imputations. It determined that the evidence overwhelmingly supported the conclusion that the broadcasts conveyed the imputations alleged by the appellant and that these imputations were defamatory. The Court concluded that counsel's address, while perhaps not ideal, did not fundamentally mislead the jury to the extent that it vitiated the entire trial. Consequently, the Court allowed the appeal, setting aside the original orders and entering verdicts that the broadcasts conveyed specific imputations and that these were defamatory. However, the appeal was dismissed in relation to two other imputations. The respondents were ordered to pay the appellant's costs of both the trial and the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of Rothman J made on 10 February 2009 and in their place order that verdicts be entered that the broadcasts conveyed each of imputations (a) to (g), (i), (k) and (l) and that each of those imputations is defamatory.

3. Appeal in relation to imputations (h) and (j) dismissed.

4. The respondents are to pay the appellant’s costs of the

s 7A trial and of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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