Hunt v Radio 2SM Pty Ltd - [2009] NSWDC 236

CITATION: Hunt v Radio 2SM Pty Ltd [2009] NSWDC 236

HEARING DATE(S): 10 September 2009

EX TEMPORE JUDGMENT DATE: 10 September 2009

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Grant leave to the plaintiff to add the words “by an investigator” to imputation (d) to read “The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator.”
(2) Grant leave to the plaintiff to add the words “by an investigator” to imputation (h) to read “The Plaintiff is being investigated about how he funds his developments by an investigator.”
(3) Grant leave to the plaintiff to amend imputation (l) to delete the balance of the imputation so it reads: “The Plaintiff is a low life.”
(4) Grant leave to the plaintiff to delete the word “corrupt” from imputation (k).
(5) The plaintiff withdraws imputation (m).
(6) Grant leave to the plaintiff to amend imputation (o) to read “The plaintiff rides roughshod with Councillors and builds developments for his own financial gain.”
(7) Plaintiff to file and serve amended statement of claim in 7 days.
(8) Defendant to file and serve Defence 28 days thereafter.
(9) Defendant is to pay the plaintiff’s costs.
(10) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.

CATCHWORDS: TORT - defamation - defendant's application to strike out imputations - challenges to form and capacity

LEGISLATION CITED: Defamation Act 2005 (NSW)

CASES CITED: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Armitage v Double Bay Newspapers Pty Ltd (Supreme Court of NSW, Hunt J, 26 September 1991, unreported)
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Griffith v John Fairfax Publications [2004] NSWCA 300
Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933
Rigby v John Fairfax Group Pty Ltd (1994) A Def R 52-005
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669

PARTIES: Plaintiff: Robert Christopher Hunt
Defendant: Radio 2SM Pty Ltd

FILE NUMBER(S): 3018 of 2009

COUNSEL: Plaintiff: Mr C A Evatt
Defendant: Mr A T S Dawson

SOLICITORS: Plaintiff: W D Hunt & Associates
Defendant: Banki Haddock Fiora

Judgment

[1] This morning I have heard argument about the form and capacity of imputations pleaded as arising from a radio broadcast and made orders as set out at the end of this judgment. As I had a number of matters in the list, and both counsel have to get away to other hearings, the parties kindly agreed that I could hand down my reasons for decision later today.

[2] The plaintiff by way of Amended Statement of Claim filed on 19 August 2009 brings proceedings for defamation under the Defamation Act 2005 (NSW) against the defendant for a radio broadcast by Radio 2SM on 30 June 2009. The plaintiff pleaded that the following imputations were conveyed by the defendant:

“(a)The Plaintiff overrides the…

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: [2009] NSWDC 236
Decision Date: 10 September 2009

CaseChat Overview and Summary

Hunt, the plaintiff, brought a defamation claim against Radio 2SM Pty Ltd, the defendant, in the Supreme Court of New South Wales. The dispute centered around various defamatory statements broadcasted by the defendant, which the plaintiff alleged tarnished his reputation as the general manager of a council. The defendant sought to have certain imputations struck out on grounds of form and capacity. The plaintiff requested amendments to certain imputations, arguing they were necessary to accurately reflect the defamatory statements.

The court examined whether the plaintiff's requested amendments to the imputations were permissible. The plaintiff sought to clarify and correct certain imputations, arguing that the original statements were misleading or incomplete. The court needed to determine if these changes were appropriate and if they fell within the scope of permissible amendments. Additionally, the court had to consider whether the amendments to the imputations would prejudice the defendant's ability to defend the claim.

The court found that the plaintiff's requested amendments were reasonable and did not prejudice the defendant's defence. The court granted the plaintiff leave to amend the imputations as requested, ensuring they accurately reflected the defamatory content of the broadcasts. The court also ordered the plaintiff to file an amended statement of claim within seven days and required the defendant to file its defence 28 days thereafter. The defendant was ordered to pay the plaintiff's costs, and the matter was stood over for further directions.

The court issued specific orders regarding the plaintiff's requested amendments to the imputations, allowing for the addition and deletion of certain words and phrases to accurately capture the defamatory content. The matter was then stood over for further directions, with the next hearing scheduled for 9:00am on Friday 13 November 2009.

Orders

Orders of the court

(1) Grant leave to the plaintiff to add the words “by an investigator” to imputation (d) to read “The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator.”

(2) Grant leave to the plaintiff to add the words “by an investigator” to imputation (h) to read “The Plaintiff is being investigated about how he funds his developments by an investigator.”

(3) Grant leave to the plaintiff to amend imputation (l) to delete the balance of the imputation so it reads: “The Plaintiff is a low life.”

(4) Grant leave to the plaintiff to delete the word “corrupt” from imputation (k).

(5) The plaintiff withdraws imputation (m).

(6) Grant leave to the plaintiff to amend imputation (o) to read “The plaintiff rides roughshod with Councillors and builds developments for his own financial gain.”

(7) Plaintiff to file and serve amended statement of claim in 7 days.

(8) Defendant to file and serve Defence 28 days thereafter.

(9) Defendant is to pay the plaintiff’s costs.

(10) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hunt v Radio 2SM Pty Ltd [2009] NSWDC 236
HEARING DATE(S):	10 September 2009
EX TEMPORE JUDGMENT DATE:	10 September 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Grant leave to the plaintiff to add the words “by an investigator” to imputation (d) to read “The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator.” (2) Grant leave to the plaintiff to add the words “by an investigator” to imputation (h) to read “The Plaintiff is being investigated about how he funds his developments by an investigator.” (3) Grant leave to the plaintiff to amend imputation (l) to delete the balance of the imputation so it reads: “The Plaintiff is a low life.” (4) Grant leave to the plaintiff to delete the word “corrupt” from imputation (k). (5) The plaintiff withdraws imputation (m). (6) Grant leave to the plaintiff to amend imputation (o) to read “The plaintiff rides roughshod with Councillors and builds developments for his own financial gain.” (7) Plaintiff to file and serve amended statement of claim in 7 days. (8) Defendant to file and serve Defence 28 days thereafter. (9) Defendant is to pay the plaintiff’s costs. (10) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.
CATCHWORDS:	TORT - defamation - defendant's application to strike out imputations - challenges to form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW)
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Armitage v Double Bay Newspapers Pty Ltd (Supreme Court of NSW, Hunt J, 26 September 1991, unreported) Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Griffith v John Fairfax Publications [2004] NSWCA 300 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 Rigby v John Fairfax Group Pty Ltd (1994) A Def R 52-005 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
PARTIES:	Plaintiff: Robert Christopher Hunt Defendant: Radio 2SM Pty Ltd
FILE NUMBER(S):	3018 of 2009
COUNSEL:	Plaintiff: Mr C A Evatt Defendant: Mr A T S Dawson
SOLICITORS:	Plaintiff: W D Hunt & Associates Defendant: Banki Haddock Fiora