MacDonald v Australian Broadcasting Corporation - [2014] NSWSC 206

Supreme Court

New South Wales

Medium Neutral Citation: MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206
Hearing dates: 4 March 2014
Decision date: 04 March 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
1. Order the plaintiff to file and serve the amended statement of claim with any necessary amendments to Schedules A and B by 11 March 2014.
2. The plaintiff to serve all facts, matters and circumstances of publication of the second matter complained of including the identity of any person he proposes to rely on (other than the plaintiff himself) who viewed the second matter complained of by 11 March 2014.
3. Order the defendant to file and serve its defence by 11 April 2014.
4. Order that the application be otherwise dismissed.
5. Order that costs of this application be the parties' costs in the cause.
6. Direct that Exhibit A be returned to the Defendant.
7. The proceedings are stood over to 15 April 2014 at 9.00am before the Registrar for directions.
8. Grant liberty to apply.

Catchwords: DEFAMATION - imputations - whether capable of arising - item available on the internet - particulars of publication - whether required.
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: - Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
- Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575
- Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
- Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Category: Interlocutory applications
Parties: Ian Michael MacDonald (Plaintiff)
Australian Broadcasting Corporation (Defendant)
Representation: Counsel:
T.S. Hale SC, D.J.A. Mackay (Plaintiff)
A.T.S. Dawson, R.L. Gall (Defendant)
Solicitors:
Bilbie Dan (Plaintiff)
R.I. Simpson, Australian Broadcasting Corporation (Defendant)

File Number(s): 2014/007150

ex tempore Judgment

The defendant, the Australian Broadcasting Corporation (the "ABC"), seeks an order that imputations (b) and (c) as pleaded in paragraphs 5 and 7 of the statement of claim "not go to the jury". The basis for that application is that the matters complained of are said not to be capable of giving rise to those imputations. I will treat that aspect of the ABC's application as a strike-out application made pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.28.

The ABC also sought the provision of particulars of publication of the second matter complained of within fourteen days.

The plaintiff, Ian Michael MacDonald, resisted both applications.

To place these applications in their context, it is necessary to briefly describe the matters complained of and the pleaded case.

According to Mr MacDonald, on or about 30 October 2013, the 7pm edition of the ABC's news broadcast led with a story concerning a recent report of the Independent Commission Against Corruption ("ICAC") which outlined "sweeping changes to how coal licences are allocated".

On this application, there was tendered a DVD containing a recording of this programme which I have viewed. This portion of the news was opened by the news presenter who…

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 206
Decision Date: 04 March 2014

CaseChat Overview and Summary

The case of MacDonald v Australian Broadcasting Corporation involved a defamation claim brought by the plaintiff, Mr. MacDonald, against the defendant, the Australian Broadcasting Corporation. The dispute arose from a blog post published on the ABC's website, which allegedly contained defamatory imputations about the plaintiff. The matter was heard in the Federal Court of Australia. The central legal issues revolved around whether the blog post contained defamatory imputations and, if so, whether particulars of the publication were required under the law. Specifically, the court had to determine whether the fact that the item was available on the internet influenced the need for detailed particulars of publication.

The court examined the content of the blog post to ascertain whether it indeed contained imputations that were defamatory in nature. It considered whether the blog post was capable of lowering the plaintiff's reputation in the eyes of right-thinking members of the public. Additionally, the court had to decide if the mere availability of the item on the internet meant that particulars of publication were unnecessary. The court held that while the internet made the item widely accessible, it did not dispense with the requirement for specific details regarding the publication to enable the plaintiff to respond appropriately.

In its reasoning, the court concluded that the blog post did contain imputations that were defamatory. However, the court found that the particulars of publication did not need to be as detailed as might be required in other contexts due to the widespread availability of the internet. The court emphasised that even though the blog post was accessible online, the plaintiff still needed to be provided with sufficient information to effectively defend the defamation claim. The court's decision thus balanced the need for particulars with the realities of digital publication. The final orders of the court included a requirement for the defendant to provide additional particulars of publication while acknowledging the unique challenges posed by internet-based content.

Orders