Harrigan v Jones - [2000] NSWSC 119

CITATION: Harrigan v Jones [2000] NSWSC 119

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20486/99

HEARING DATE(S): 3 March 2000

JUDGMENT DATE: 8 March 2000

PARTIES :

Bill Harrigan (Plaintiff)
Alan Jones (Defendant)

JUDGMENT OF: Studdert J

COUNSEL : C. Evatt (Plaintiff)
B. Connell (Defendant)

SOLICITORS: Williamsons (Plaintiff)
Bush Burke & Company (Defendant)

LEGISLATION CITED: Defamation Act
Rules of Court

CASES CITED: Singleton v John Fairfax & Sons Ltd (unreported, Hunt J, 20 February 1980)

DECISION: Application dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Wednesday 8 March 2000

20486/99 BILL HARRIGAN v ALAN JONES
JUDGMENT
1   HIS HONOUR: The plaintiff, Bill Harrigan, sues the defendant, Alan Jones, complaining that he was defamed in the course of a broadcast on radio station 2UE on 8 September 1998. The matter has been set down for hearing for 5 April next for determination of the jury issues under s 7A of the Defamation Act. The present application is made by the plaintiff to amend his statement of claim.
2   In the statement of claim first filed, the plaintiff pleaded four imputations:

“(a) The plaintiff carries out his duties as a referee in a biased manner.

(b) The plaintiff is unfit to be a referee.

(c) The plaintiff does not carry out his duties as a referee fairly.

(d) The plaintiff is dishonest as a referee.”

3   On the application before me on 3 March 2000 Mr Evatt sought to amend para 2 of the statement of claim so as to rely upon the following imputations instead of those originally pleaded:

“(a) The plaintiff carries out his duties as a referee in a biased manner.

(d) The plaintiff is dishonest as a referee.

(e) As a referee the plaintiff favours ex-Super League teams over ex-ARL teams when awarding penalties.

(f) As a referee the plaintiff favours Brisbane over their opponents when awarding penalties.”

4   Mr Connell, for the defendant, opposed the amendments in so far as Mr Evatt sought to add imputations (d), (e) and (f) but did not oppose the abandonment of imputations (b) and (c) as originally pleaded. The argument proceeded and was completed without it coming to my attention that Levine J had made orders when the matter came before him on 3 December last year. I shall return to what happened in the Defamation List on that date shortly.
5   The broadcast complained of contained the following utterances attributed to the defendant upon which Mr Evatt relied as supporting the imputations pleaded in the amended statement of claim (and this apparently in the context of a recorded conversation between the defendant and a Mr Whittaker, who it seems occupied an executive position on the National Rugby League):

“JONES: Have you had presented to you any statistics about refereeing, because I have. And there’s an agitation about that as well. I’m talking about ARL and ex-Super League and ex-ARL. And that - well, all Brisbane matches played under Bill Harrigan, penalties for Brisbane…

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: [2000] NSWSC 119
Decision Date: 8 March 2000

CaseChat Overview and Summary

Bill Harrigan sued Alan Jones for defamation arising from a broadcast on 2UE radio on 8 September 1998. Harrigan alleged that Jones defamed him in his capacity as a rugby league referee. The matter was set for a jury trial on 5 April 2000. Harrigan sought to amend his statement of claim to add new imputations of dishonesty and favouritism towards certain teams. Jones opposed the amendments. The court considered whether the new imputations were reasonably capable of being inferred from the broadcast and whether they complied with court rules.

The court found that the proposed imputation of dishonesty was not reasonably capable of being inferred from the same material relied upon for the imputation of bias. The broadcast material did not support a conscious and deliberate course of conduct amounting to cheating. The court also found that the proposed imputations of favouritism towards certain teams had already been addressed in an earlier order by Levine J on 3 December 1999. Therefore, the plaintiff was not permitted to add the new imputations. The court ordered the plaintiff to pay the costs of the application.

Orders