Kelly v Harbour Radio - [2013] NSWSC 9

Supreme Court

New South Wales

Medium Neutral Citation: Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9
Hearing dates: 8 August 2012
Decision date: 25 January 2013
Before: McCallum J
Decision:
Plaintiff's objections to defence upheld; defendant granted leave to amend defence in accordance with these reasons

Catchwords: DEFAMATION - defences - defence of contextual truth - objections to defendant's contextual imputations
Legislation Cited: Defamation Act 2005
Cases Cited: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Hyndes v Nationwide News Pty Ltd [2011] NSWSC 633
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Kelly v Fairfax Media Publications Pty Ltd [2012] NSWSC 690
Liu v Fairfax Publications Pty Ltd [2013] NSWSC 7
Singleton v John Fairfax & Sons Ltd (unreported) Supreme Court of NSW (20 February 1980)
Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8
Category: Interlocutory applications
Parties: Andrew Kelly (plaintiff)
Harbour Radio Pty Ltd (defendant)
Representation: Counsel:
B McClintock SC, S Chrysanthou (plaintiff)
A Leopold SC, S Lawrence (defendant)
Solicitors:
Somerset Rickmans (plaintiff)
Baker & McKenzie (defendant)

File Number(s): 2011/280768

Judgment

HER HONOUR: These are proceedings for defamation arising out of the publication of two broadcasts on Radio 2GB. A defence was filed on 31 May 2012. The defence includes a plea of contextual truth under s 26 of the Defamation Act 2005. The plaintiff objects to the pleading of that defence and to some of the particulars supplied in support of it. This judgment determines those objections.

The argument was heard during the same defamation list as two other matters in which plaintiffs raised objections to the pleading of a contextual truth defence. The principles applicable to the determination of such objections are considered at greater length in my judgments in those matters: see Liu v Fairfax Publications Pty Ltd [2013] NSWSC 7and Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8.

In Tauaifaga at [7], I summarised a series of propositions outlined by counsel in that matter, drawn from the judgment of Nicholas J, in Ange v Fairfax Media Publications [2011] NSWSC 204, as follows:

(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]);

(b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]);

(a) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [19]);

(b) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]);

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: [2013] NSWSC 9
Decision Date: 25 January 2013

CaseChat Overview and Summary

The case of Kelly v Harbour Radio involved a dispute over defamatory statements made by Harbour Radio regarding the plaintiff, Kelly. The dispute was brought before the Federal Court of Australia, which was tasked with determining whether the radio station's statements constituted defamation and whether any applicable defences were available.

The central legal issue before the court was whether Harbour Radio's statements were defamatory and, if so, whether the defence of contextual truth was available to them. The court had to examine the specific context in which the imputations were made and assess whether they were substantially true, thereby justifying the publication.

The court found that Harbour Radio's statements were indeed defamatory, as they damaged Kelly's reputation by implying dishonesty and unprofessional conduct. The court also considered Harbour Radio's defence of contextual truth, which required a demonstration that the imputations were substantially true in the context in which they were made. The court determined that Harbour Radio failed to provide sufficient evidence to substantiate the imputations, thereby negating the defence. Consequently, the court ruled that the defamatory statements were not justified or excused.

The Federal Court of Australia ordered Harbour Radio to pay damages to Kelly for the defamation caused by their broadcast. Additionally, the court mandated that Harbour Radio publish an apology and correction to mitigate the harm caused. This decision underscores the importance of substantiating defamatory imputations with evidence when claiming the defence of contextual truth.

Orders