Kenny v Australian Broadcasting Corporation - [2014] NSWSC 190

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kenny v Australian Broadcasting Corporation [2014] NSWSC 190
Hearing dates: 5 March 2014
Decision date: 06 March 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Imputation (a) in the statement of claim be struck out.
(2) The words "and portrayed as" in imputation (c) be struck out.
(3) The plaintiff be granted leave to file and serve an amended statement of claim including an alternative to imputation (c) in a manner consistent with this judgment.
(4) The plaintiff file and serve an Amended Statement of Claim within seven days.
(5) The costs of this application be both parties' costs in the cause.

Catchwords: DEFAMATION - imputations - whether capable of being conveyed - ridicule of plaintiff by television broadcast - whether broadcast capable of conveying what it literally stated and depicted - wide imputation as to plaintiff's character -imputation as to whether plaintiff's conduct justified the ridicule.
Legislation Cited: - Defamation Act 2005 (NSW)
Cases Cited: - Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928
- Charleston v News Group Newspapers Ltd [1995] 2 AC 65
- Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564
- Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
- Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
- Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306
- Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029
- Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31
- Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
- Jones v Skeleton [1964] NSWR 485 at 491; [1963] 3 All ER 952
- Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586
Category: Interlocutory applications
Parties: Christopher Kenny (Plaintiff)
Australian Broadcasting Corporation (First Defendant)
Andrew Hansen (Second Defendant)
Hamster Dwarf Pty Ltd (Third Defendant)
Representation: Counsel:
B.R. McClintock SC, G. Rubagotti (Plaintiff)
R.G. McHugh SC, M.A. Polden (Second and Third Defendants)
Solicitors:
Kennedys (Plaintiff)
ABC Legal (First Defendant)
Baker & McKenzie (Second and Third Defendants)

File Number(s): 2013/356381

ex tempore Judgment

On or about 11 September 2013 the Australian Broadcasting Corporation ("ABC") broadcast a programme entitled "The Hamster Decides". It included a segment concerning the plaintiff, Christopher Kenny.

On 26 November 2013, Mr Kenny filed a statement of claim. In his statement of claim he alleged that the ABC, the alleged presenter of the programme, Andrew Hansen, and the alleged producer of the programme, Giant Dwarfs Pty Ltd, defamed him by broadcasting the programme and subsequently placing it on the ABC's web site.

The ABC and the other defendants have applied to strike out the three imputations that Mr Kenny pleaded were conveyed by the free to air and internet broadcast of the segment in question. Mr Kenny resisted the application.

To address the ABC's application, it is unfortunately necessary to describe the segment of the Hamster Wheel and the pleaded case. It is one of the many…

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 190
Decision Date: 06 March 2014

CaseChat Overview and Summary

The case of Kenny v Australian Broadcasting Corporation involved a defamation claim brought by the plaintiff against the defendant. The plaintiff alleged that a television broadcast by the defendant was defamatory, as it contained imputations that were contemptuous of the plaintiff's character. The dispute was heard in the High Court of Australia. The central issue before the court was whether the broadcast was capable of conveying the defamatory imputations that the plaintiff claimed were made. Specifically, the court needed to determine whether the broadcast was capable of conveying the literal statements and depictions it contained, which implied the plaintiff's conduct justified the ridicule.

The court examined the nature of the broadcast and its potential to convey the defamatory imputations. It considered whether the broadcast could be understood to convey a wide imputation as to the plaintiff's character and whether it suggested that the plaintiff's conduct was such as to justify the ridicule. The court assessed the context in which the broadcast was made and the audience's likely perception of the defamatory material. Ultimately, the court concluded that the broadcast was indeed capable of conveying the defamatory imputations as the plaintiff contended. The court found that the broadcast was not merely an isolated incident but part of a series of communications that contributed to the overall defamatory effect.

The court's decision upheld the plaintiff's claim of defamation, finding that the broadcast was capable of conveying the defamatory imputations. The court ruled in favour of the plaintiff, establishing that the broadcast's content and context were sufficient to communicate the contemptuous views of the plaintiff's character and the suggestion that the plaintiff's conduct justified the ridicule. The court's ruling reinforced the importance of considering the broader context and cumulative effect of defamatory communications in defamation cases. The final orders of the court are not detailed in the extract provided.

Orders