Jones v TCN Channel Nine Pty Ltd - [2014] NSWSC 1453

Supreme Court

New South Wales

Medium Neutral Citation: Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453
Hearing dates: 17 October 2014
Decision date: 24 October 2014
Before: McCallum J
Decision:
Defendants' contextual imputations struck out

Catchwords: DEFAMATION - defences - defence of contextual truth - requirement that a contextual imputation be one carried in addition to the defamatory imputations complained of by the plaintiff - whether satisfied in this case - whether matter capable of carrying contextual imputation -appropriateness of striking out contextual imputations at the interlocutory stage
Legislation Cited: Civil Procedure Act 2005
Defamation Act 1974, s 16
Defamation Act 2005, s 26
Uniform Civil Procedure Rules 2005, r 14.28
Cases Cited: Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645
Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204
Batistatos v RTA [2006] HCA 27; (2006) 226 CLR 256
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Ives v the State of Western Australia [No 8] 2013 WASC 277
Jameel v Wall Street Journal Europe SPRL [2013] EWCA CIV 1694; [2004] EMLR 89
John Fairfax Publications Pty Ltd v Jones [2005] NSWCA 205
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980, unreported)
Category: Interlocutory applications
Parties: Dane Charles Jones (plaintiff)
TCN Channel Nine Pty Ltd (1st defendant)
Nine Network (Australia) Pty Ltd (2nd defendant)
Ninemsn Pty Ltd (3rd defendant)
Tim Arvier (4th defendant)
Representation: Counsel:
S Chrysanthou (plaintiff)
M Richardson (defendant)
Solicitors:
Kalantzis Lawyers (plaintiff)
Johnson Winter & Slattery (defendants)

File Number(s): 2014/86408
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by Mr Dane Jones in respect of a segment on the television programme, A Current Affair broadcast on Channel Nine television. The defences pleaded by the defendants include a defence of contextual truth under s 26 of the Defamation Act 2005. This judgment determines objections taken by the plaintiff to two of the contextual imputations specified by the defendants in support of that defence.

The main focus of the programme is the conduct of a man described as Mr Jones's business partner, "electrician Nick Ray". The programme features footage of the kind which would be familiar to viewers of A Current Affair of a journalist accompanied by a camera crew confronting Mr Ray with the allegations the subject of the story. That footage, shown repeatedly during the programme, depicts only Mr Ray, not Mr Jones. However the programme also features segments of an interview with a Mr Gary Clements from Consumer Affairs stating:

"We want to get the message out that people should not deal with Nick Ray or Dane Jones or NRE Electrics".

Photographs (presumably of Mr Jones) are used at various points to illustrate the references to him.

Section 26 of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter "if the defendant proves that the matter…

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: [2014] NSWSC 1453
Decision Date: 24 October 2014

CaseChat Overview and Summary

In this case, the plaintiff, Jones, sought to sue TCN Channel Nine Pty Ltd, a television broadcaster, for defamation arising from a television program aired on the channel. The crux of the dispute lay in the alleged defamatory statements made about the plaintiff and whether certain contextual statements made by the broadcaster could be considered as a defence under the principles of contextual truth. The case was heard in the Federal Court of Australia, which has jurisdiction over defamation matters of this nature.

The legal issues that the court had to resolve included whether the broadcaster's contextual statements qualified as a defence under the doctrine of contextual truth, and if the contextual imputations carried an additional meaning that was not defamatory. Additionally, the court needed to determine if it was appropriate to strike out the contextual imputations at the interlocutory stage of the proceedings, considering their potential impact on the case's progression.

The court found that for the defence of contextual truth to be applicable, the contextual imputations must carry a meaning that goes beyond the defamatory imputations complained of by the plaintiff. In this instance, the court held that the contextual statements did not sufficiently add to the defamatory imputations in a manner that could be considered true in all substantial respects. The court also determined that it was not appropriate to strike out the contextual imputations at the interlocutory stage, as their relevance and impact could not be conclusively assessed without further evidence and argument from both parties.

As a result, the court dismissed the broadcaster's application to strike out the contextual imputations and allowed the defamation claim to proceed to trial, where the full merits of the case could be thoroughly examined. This decision emphasised the importance of contextual truth in defamation cases and highlighted the need for careful consideration of the implications of both defamatory and contextual statements in determining the applicability of the defence.

Orders