Manock v Channel 7 Adelaide Pty Ltd - [2005] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MANOCK v CHANNEL 7 ADELAIDE PTY LTD
Judgment of His Honour Judge Muecke
9 December 2005
DEFAMATION
Defence of comment - whether particulars of public interest and particulars of facts upon which comment is based should be struck out
Pervan v North Queensland Newspaper Co. Ltd (1993) 178 CLR 309; Kemsley v Foot (1952) AC 345; Hawke v Tamworth Newspaper Co. Ltd (1983) 1 NSWLR 699, discussed.
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; C v L & Ors (2005) SASC 315; Fogarty v Nationwide News Ltd (2005) WASC 2, at paras 46ff; Nationwide News Pty Ltd v Sleeman (2005) NSWCA 349, at paras 30ff, considered.

MANOCK v CHANNEL 7 ADELAIDE PTY LTD
[2005] SADC 168

This is an appeal and a cross-appeal against certain orders made by a Master on 27 September 2005.
At about 7.00 pm on or about 5 March 2004 the defendant, as part of a program known as “Today Tonight”, broadcast a promotional item for a future edition of that program (“the promotion”).
The promotion consisted of the host of “Today Tonight” depicted speaking and saying:
The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.
This was said as a picture of Dr Colin Manock (“the plaintiff”) was displayed against the background and slightly above the host.
By a Summons filed in this court on 22 March 2004 the plaintiff sued the defendant Channel 7 Adelaide Pty Ltd (“Channel 7”) claiming damages relating to the promotion. The plaintiff alleged:
The promotion in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
The plaintiff alleged that the promotion was calculated to damage him in his occupation as a forensic pathologist and by reason of the broadcast of the promotion he had been greatly injured and had suffered considerable distress and embarrassment. He claimed damages from Channel 7 including exemplary damages.
Channel 7 filed a Defence on 16 June 2004. It admitted the promotion broadcast but denied the promotion bore or was understood to bear or was capable of bearing the meaning pleaded by the plaintiff. Channel 7 pleaded a simple denial as to the other matters alleged by the plaintiff.
Channel 7 filed an Amended Defence on 2 March 2005. In its Amended Defence Channel 7 pleaded that if the promotion would be understood in its natural and ordinary meaning (and in the context of the whole promotion) to refer to the plaintiff (which was not admitted) the promotion would (not) be or would (not) be capable of being understood to refer solely or primarily to the plaintiff. Channel 7 then pleaded:
Further, or in the alternative,…

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: [2005] SADC 168
Decision Date: 9 December 2005

CaseChat Overview and Summary

In this defamation case, Dr Colin Manock, a forensic pathologist, sued Channel 7 Adelaide Pty Ltd for broadcasting a promotional segment during its "Today Tonight" program that allegedly defamed him. The plaintiff claimed that the segment suggested he had concealed evidence in the trials of a man named Keogh, damaging his reputation and causing distress. Channel 7, in turn, admitted broadcasting the segment but denied it had the defamatory meaning alleged and further pleaded that if it did, it was fair comment on matters of public interest. Channel 7 provided specific details in its pleadings, which the plaintiff sought to have struck out.

The central legal issues were whether certain details provided by Channel 7 as particulars of public interest and facts upon which the comment was based were relevant and admissible. The court had to determine if these particulars were necessary to justify the claim of fair comment and if they could be stricken out before trial. The court considered relevant precedents, including Pervan v North Queensland Newspaper Co. Ltd, Kemsley v Foot, and Hawke v Tamworth Newspaper Co. Ltd, among others.

The court examined each paragraph of the particulars to determine if they were relevant to justifying the fair comment defence. It found that certain paragraphs related to matters not directly pertinent to the comment in question and therefore struck them out. For instance, paragraphs 3.13 to 3.16, which detailed investigations into the death of Ms Cheney and the Keogh trials, were deemed irrelevant to the public interest aspect of the comment. Similarly, certain facts identified in paragraphs 3.26.1 and 3.26.3 were struck out as they could not have been known to Channel 7 at the time of the broadcast. The court ruled that the remaining particulars were relevant and could stand unless Channel 7 could demonstrate they were irrelevant at trial.

In conclusion, the court ordered that certain paragraphs be struck out, including paragraphs 3.13 to 3.17 and specific parts of paragraph 3.26, but allowed others to remain for trial. The court did not address costs at this stage but indicated it would consider ancillary orders.

Orders