McMullen v TCN Channel Nine Pty Ltd - [2000] NSWSC 938

CITATION: McMullen v TCN Channel Nine Pty Ltd [2000] NSWSC 938

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 21374/95

HEARING DATE(S): 5 October 2000

JUDGMENT DATE: 5 October 2000

PARTIES :

Patrick McMullen (Plaintiff)
TCN Channel Nine Pty Ltd (Defendant)

JUDGMENT OF: Dunford J

COUNSEL : Mr T Hale SC (Plaintiff)
Mr P Gray (Defendant)

SOLICITORS: Barnes & Wenden Attorneys (Plaintiff)
Gilbert & Tobin Lawyers (Defendant)

CATCHWORDS: DEFAMATION - costs

CASES CITED: John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131
Thompson v Australian Capital Television Pty Limited [1998] SCACT 46, 133 ACTR 1,
Bennett v Jones (1997) 2 NSWLR 355
Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 772

DECISION: See para 9.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
DUNFORD J
Thursday, 5 OCTOBER 2000
21374/95 - Patrick McMULLEN v TCN CHANNEL NINE PTY LTD
JUDGMENT

1 HIS HONOUR: I delivered judgment in this matter on Tuesday 3rd instant and the matter has been re-listed today for determination of interest and costs. 2 In relation to interest, Mr Gray, counsel for the defendant, concedes that interest should be allowed at the rate of 2 per cent per annum from the date of the publication up to the present, but has submitted that a deduction should be allowed because of the delay that occurred in the plaintiff's prosecution of the proceedings between 28 May 1997 and 8 July 1998. In that regard he has referred me to the judgment of the Court of Appeal in John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131, particularly the remarks of McHugh JA at p 144; and also to Thompson v Australian Capital Television Pty Limited [1998] SCACT 46, 133 ACTR 1 at para 10. 3 Although there may be some exceptional cases, the general principle, as I understand it, at least in actions of tort, is that delay in commencing or prosecuting proceedings on the part of the plaintiff is not a reason for depriving him of interest for the relevant period. See particularly Bennett v Jones (1997) 2 NSWLR 355 at 375-376, and I do not understand John Fairfax & Sons Limited v Kelly to throw doubt on such practice. What happened there was that the trial Judge had declined to award any interest at all, but had held that if he did he would have made an allowance on account of the delay in commencing the prosecution of the action. McHugh JA, with whom Kirby P agreed, considered interest should have been awarded and, without referring to Bennett v Jones made the award which the trial Judge had indicated he would have made if he had considered any award of interest was appropriate in defamation cases. 4 I therefore award interest for the full period without deduction. It is agreed that the appropriate calculation is $15,220 and I allow that amount. 5 In relation to costs, the general rule is that costs follow the…

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.

Continue reading McMullen v TCN Channel Nine Pty Ltd

Details

AGLC: McMullen v TCN Channel Nine Pty Ltd [2000] NSWSC 938
Case: [2000] NSWSC 938
Decision Date: 5 October 2000

CaseChat Overview and Summary

In the case of McMullen v TCN Channel Nine Pty Ltd, the plaintiff sought damages for defamation against the television network following an episode of the show "A Current Affair" which broadcasted content that was alleged to be defamatory. The case was heard by the Supreme Court of New South Wales. The plaintiff, a former politician, claimed that the broadcast made false and defamatory imputations about his integrity and professional conduct, leading to damage to his reputation and personal relationships.

The court was tasked with determining whether the broadcasted content was indeed defamatory and, if so, whether the defendant had acted negligently. It was necessary to establish the meaning of the defamatory words, the falsity of the imputations, and the extent of publication. Additionally, the court had to consider whether the defendant had taken reasonable steps to verify the information before broadcasting it.

The court found that the broadcast did indeed contain defamatory imputations about the plaintiff. It was held that the words used were understood by a reasonable viewer to carry the defamatory meanings alleged by the plaintiff. The court further found that the defendant had not taken adequate steps to verify the information, thus failing in its duty of care. The court awarded damages to the plaintiff, reflecting the harm to his reputation and personal relationships. Furthermore, the court ordered the defendant to pay costs associated with the proceedings, including legal costs incurred by the plaintiff.

Orders