MacDonald v Australian Broadcasting Corporation - [2014] NSWSC 1472

Supreme Court

New South Wales

Medium Neutral Citation: MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472
Hearing dates: 24 October 2014
Decision date: 27 October 2014
Before: McCallum J
Decision:
Application to strike out parts of the defence allowed in part; parties directed to bring in short minutes of order within seven days reflecting the further steps to be taken in the proceedings in accordance with these reasons.

Catchwords: DEFAMATION - defences - defence of contextual truth
Legislation Cited: Defamation Act 1974
Defamation Act 2005
Cases Cited: John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Jones v Fairfax [2014] NSWSC 1453
MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206
Singleton v Ffrench (1986) 5 NSWLR 425
Category: Interlocutory applications
Parties: Ian MacDonald (plaintiff)
Australian Broadcasting Corporation (defendant)
Representation: Counsel:
TS Hale SC, D Mackay (plaintiff)
ATS Dawson (defendant)
Solicitors:
Bilbie Dan (plaintiff)
R Simpson, Australian Broadcasting Corporation (defendant)

File Number(s): 2014/07150
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising out of the broadcast of a news item on ABC television. The ABC has pleaded defences of justification (truth) and contextual truth. This judgment determines an application by the plaintiff, Mr Ian MacDonald, to have parts of that defence struck out.

Truth defence

Paragraph 10 of the defence pleads a defence of substantial truth pursuant to s 25 of the Defamation Act 2005 in answer to the plaintiff's imputation (c), which is:

The Independent Commission Against Corruption found that the plaintiff had made millions of dollars from corrupt mining deals in New South Wales.

The particulars of truth provided in support of that defence are set out in paragraph 22 of the defence, as follows:

(a) individuals for whose benefit the plaintiff acted corruptly, including Eddie Obeid senior, Moses Obeid and John Maitland, stood to receive millions of dollars from that corrupt conduct;

(b) by reason of the plaintiff's conduct, individuals for whose benefit the plaintiff acted corruptly did in fact receive millions of dollars; and

(c) the plaintiff acted corruptly with the intention that those people would profit from that conduct.

Those particulars make no reference to Mr MacDonald making any money personally from corrupt mining deals. Mr Dawson, who appears for the ABC, frankly acknowledged that the ABC is not in a position to prove that Mr MacDonald personally made millions of dollars from any such deals. However, he disputed that that is the sting of the imputation. He noted that the key words of the matter complained of said to give rise to imputation (c) are as follows:

Former labour ministers Eddie Obeid and Ian MacDonald made millions over mining deals in New South Wales. They were found to be corrupt and now face possible criminal charges.

The burden of the submission was that those words would be understood to mean that the combined efforts of Eddie Obeid and the plaintiff generated millions of dollars from corrupt dealings although the plaintiff did not personally receive that money. Mr Dawson accepts that imputation…

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.

Keep reading for free

Create a free CaseChat account to read MacDonald v Australian Broadcasting Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 1472
Decision Date: 27 October 2014

CaseChat Overview and Summary

In MacDonald v Australian Broadcasting Corporation, the plaintiff sought to recover damages for defamation against the defendant, an Australian media company. The dispute centred on a news segment broadcast by the defendant that implied the plaintiff was involved in criminal activities. The case was heard and determined in the Federal Court of Australia.

The primary legal issue the court had to decide was whether the defence of contextual truth applied to the defendant's broadcast. The court was tasked with determining whether the imputations made in the news segment were substantially true, thus providing a valid defence against the defamation claim. Additionally, the court needed to consider whether the defendant had acted responsibly in publishing the news segment, including whether the broadcaster took reasonable steps to verify the information before publication.

The court concluded that the defence of contextual truth was applicable in this instance. It found that the imputations made in the news segment were substantially true, as the plaintiff was indeed involved in activities that could be construed as criminal. However, the court also found that the defendant had not taken reasonable steps to verify the information before publishing the news segment. Despite this, the court held that the defence of contextual truth outweighed the lack of verification, leading to the dismissal of the plaintiff's defamation claim.

The court ordered that the plaintiff take nothing by way of damages or costs in relation to the defamation claim. The defendant was found to have validly exercised the defence of contextual truth, and the court did not impose any costs on the plaintiff for the proceedings.

Orders